DENTAL JURISPRUDENCE 



DENTAL 
JURISPRUDENCE 



AN EPITOME 

OF THE 

LAW OF DENTISTRY 

AND 

DENTAL SURGERY 



BY 
ELMER D. BROTHERS, B.S., LL.B. 

PROFESSOR OF MEDICAL AND DENTAL JURISPRUDENCE IN THE UNIVER- 
SITY OF ILLINOIS, AND LECTURER IN JOHN MARSHALL 
LAW SCHOOL, CHICAGO. 



ST. LOUIS 

C. V. MOSBY CO. 

1919 






Copyright, 1914, by C. V. Mosby Co. 



| 



Press of 

C. V. Mosby Co. 

St. Louis 



_ 



PEEFACE 

This work has been prepared with the view of 
arranging in concise and readable form those 
principles and rules of law which most affect the 
dentist in his individual and professional capac- 
ity. It is a development of a course of lectures 
which the writer has been delivering to classes of 
dental students since 1895, and embodies what he 
found most useful and interesting to the progress- 
ive, inquiring mind of the student. It is believed 
the work will be instructive to any practitioner 
who desires to inform himself on this very im- 
portant subject. 

While the curricula of dental colleges have 
scheduled this subject for a number of years, it 
has been the observation of the writer that the 
instruction has frequently been limited to a few 
talks on the ethics of the profession, with a pos- 
sible discourse by some distinguished jurist on 
his experience in having a tooth extracted or some 
equally weighty legal topic. This condition of 
affairs has not been due to any lack of apprecia- 
tion of the importance of the subject but because 



of the inadequacy of the means at command, as 
no textbook suitable for the purpose has been 
available. As a result, most practitioners have 
had almost no instruction on their professional 
rights and responsibilities under the law. It is 
believed that in this epitome they will realize the 
information in question. 

No analysis of dental statutes has been at- 
tempted further than reference to judicial in- 
terpretations in their application, because the 
statute laws on questions involved are continually 
changing. The reader must refer to the statutes 
of his state for local regulations. 

Boards of Examiners will find it valuable not 
only in connection with examinations but also in 
determining their power and rights in the trial 
and discipline of licentiates. 

The writer has purposely confined himself al- 
most exclusively to the legal aspect of the ques- 
tions involved, in the belief that the dental phase 
is sufficiently covered in other courses; in other 
words, a knowledge of modern dentistry — its 
achievements and efforts, is assumed. 

Eeference is frequently made to authorities 
which support the propositions, in order to give 
the reader a direct line on the great volume of 
judicial opinions on the subject. Unless other- 
wise explained, L. E. A. means Lawyers Eeports 
Annotated (new series) and A. C. means Ameri- 



PREFACE 

can and English Annotated cases. While most 
of the references are to medical cases, the prin- 
ciples involved are eqnally applicable to dental 
practitioners. 

Elmer D. Brothers. 
Chicago, May, 1914. 



CONTENTS 



CHAPTER I. 
ANALYSIS OF SUBJECT. 
Nature of the Subject — Natuke of the Relation — 

Nature of the Profession — Definition . . . 1-6 

CHAPTER II. 
SKILL, CARE AND JUDGMENT. 
General Observations — Skill and Care Confused — 
Relation to Legal Responsibility — Skill Re- 
quired — Care Required — Judgment Required — 
Specialists — > Progress — Non -professional Vol- 
unteer 7-25 

CHAPTER III. 
MALPRACTICE. 
General Explanation — Negligence — ■ Carelessness 
Never Excused — Patient's Duty to Seek Other 
Professional Assistance — • Responsibility for 
Negligence of Nurses — Usual Treatment — Re- 
lation of Negligence to Injury — Experimenta- 
tion — Established Mode of Treatment — What 
Constitutes Negligence is a Question of Law — 
Negligence of the Patient — Confusion Among 
Authorities — Contributory Negligence — Inde- 
pendent Treatments — 'Presumption from In- 
jury or Failure to Cure — Suit in Tort — Agree- 
ment Excusing Negligence — Exhibiting Injury 
— Accident — Gratuitous Services — Arbitrary 
Refusal to Take Case — Civil Rights Acts — 
Wrong Diagnosis — Damages — Burden of Proof 
— ■ Partners — Independent Acts — Matron, As- 
sistant, Apprentice — ■ Death from Malpractice — 
Criminal Liability 26-50 



CONTENTS 

CHAPTER IV. 
RES IPSA LOQUITUR. 
Pbe sumption — The Maxim — Application of the 
Maxim — Sponge Cases — Dental Cases — Others 
Involved — Infection 51-57 

CHAPTER V. 
DENTITION. 
Development of the Teeth — Identification by 

Means of the Teeth 62-61 

CHAPTER VI. 
ANESTHETICS. 
Definition — Kinds of Anesthetics — Responsibil- 
ity in Administering Anesthetics — Extreme Re- 
sponsibility in Fact — Effects of Anesthetic — 
Value of Testimony — Rape — Right to Admin- 



62-68 



CHAPTER VII. 

CONSENT TO OPERATION. 

Consent Necessary — Motive — Implied Consent — 
Scope of Consent — More Than One Method — 
Emergency — Whose Consent — Extent of Con- 
sent — Departure from Agreed Operation — 'Pro- 
hibited Act — Presumptions fbom Genebal Con- 
sent — The Patient's Right as Affecting 
Operator's Duty — Terms of Contract for Opera- 
tion — Damages for Unauthobized Operation . 69-87 

CHAPTER VHL 

COMPENSATION. 

History — Agreement as to Fee — No Agreement as 
to Fee — Benefit to Patient — Fault of Servant 

— Benefit to Employer — Proper Treatment — 
Value of Services, a Question of Fact — Agree- 
ment Is Not Necessary — < Fee Where No Relief 

— What May be Shown — Nature of Remedies 



CONTENTS 

Must be Disclosed if Sought — Bill Differing 
from Pbesent Claim — How Proven — What Mat 
Not Be Shown — Professional Chabacteb of 
Peactitioners — Pecuniary Cibcumstances of Pa- 
tient — Special Agreement as to Result — Lia- 
bility of Thibd Pebson — License Presumed — 
Unlicensed Peactitionebs — Necessabies — Fam- 
ily Expenses — Parent and Child — Malprac- 
tice 88-102 

CHAPTER IX. 

LICENSE. 
i. right to require or issue. 

Common Law Rights — 'Public Welfare — Right of 
State — Requieements — Unreasonable Limita- 
tions — • Resteictions — Power of the State — 
Boards of Examiners — 'Statutes Construed Lib- 
erally 103-109 

n. power to revoke. 

Reserved Right — 'Not Vested Right — Manner of 
Revocation — Notice — > Hearing — Not a Judi- 
cial Function — Charges — Proceedings — 
Grounds or Causes — 'Revocation and Criminal 
Prosecution — Jury Trial — Statutes of Lim- 
itation 110-118 

CHAPTER X. 

CONTRACTUAL RELATIONS. 

General Observations — Contracts — Definition — < 
Kinds of Contracts — Delivery — Parties — 
consideeation — effect of signing contbact — 
Constitutional Right to Contract .... 119-128 

CHAPTER XL 

BUSINESS RELATION. 

Manufacturer and Buyer — Delivery — Payment — > 
Default in Delivery — Acceptance — Reason- 
able Opportunity — Specified Materlal — Qual- 



CONTENTS 

itt, Workmanship, Etc. — Defects — Rescission — 
Sensitiveness of Patient — Woek to the Satis- 
faction of the Patient 129-142 

CHAPTER XII. 

MISCELLANEOUS SUBJECTS. 

Goods, Wares and Merchandise — Guaranty — Re- 
ceipt — Release 143-150 

CHAPTER XIII. 

ADMINISTRATIVE LAW. 

Courts — > Jurisdiction — Procedure — Hearsay — 
Evidence — Testimony — Witnesses — Opinions 
of Ordinary Witnesses — Subject-matter of Ex- 
pert Testimony — Expert Witnesses — Basis of 
Opinion — Subjects of Inquiry — Cross-examina- 
tion of Expert — Privileged Communications — 
At Common Law — Statutes — Provisions — Pur- 
poses — Interpretation — Incidental Informa- 
tion — Waiver of Privilege — Dentists Not In- 
cluded by Construction — Code Napoleon — 
Criminal Purpose 151-169 

CHAPTER XIV. 

MISCELLANEOUS SUBJECTS. 

Contracts and Work on Sunday — Survival of Ac- 
tion — ■ Joint Actions — Contribution — Satisfac- 
tion — Purchase of Peace — Agreement Not to 
Sue 170-174 

CHAPTER XV. 

FALSE REPRESENTATIONS. 

Trust and Confidence — Opinions — > Confidential Re- 
lations and Special Knowledge — Fraud — Ma- 
teriality—Intent — Elements of the Tort — ■ 
Illustrations of the Principle — Responsibility 
of Practitioner for Opinion — Fraud in Conceal- 
ment of Inability to Relieve — Practitioner 



CONTENTS 

Changeable with Knowledge — Reason fob the 
Rule — Case Explained — False Advestisements 

— As to Thibd Pabty — Remedies — Damages . 175-194 

CHAPTER XVI. 
CONTRACTS IN RESTRAINT OF TRADE. 
Not Favobed in Law — Specific Peefoemance — Rea- 
sonable Restbiction — Ageeement Not to Pbac- 
tice — Injunctions 195-197 

CHAPTER XVII. 
STATUTES OF LIMITATIONS. 
Policy of the Law — When Cause Accbues — Mal- 
pbactice Cases — Diligence — Specified Sebvices 

— Latent Injueies — Minobs 199-205 



DENTAL JURISPRUDENCE 

CHAPTEE I 

ANALYSIS OF SUBJECT 

Nature of the Subject.— The evolution of a na- 
tion's laws follows the progress of its civiliza- 
tion, the course of its enlightenment and the 
development of its industries. The jurisprudence 
of a people constitutes its autobiography. A his- 
tory of law is a history of the human race. Law 
never rises above the level of contemporaneous 
thought and sensibility. Laws furnish an exact 
index to the status of society. They embody 
the intelligence and reflect the character and pas- 
sions of the people. They register the magnifi- 
cence of power and reveal the secret canker of 
shame. A law never precedes its necessity or the 
conditions to which it applies. "Thou shalt not 
kill," would never have thundered from Sinai to 
the ages, had death not entered into the world, 
or had mankind not objected to such forcible tak- 
ing off. Given their laws, you determine the de- 
gree of civilization of a people, the progress they 
have made in the arts and sciences, their mode of 
existence, their enlightenment, their ideas of right 
1 



Z DENTAL JURISPRUDENCE 

and wrong, their conception of duty to each other, 
their notion of responsibility to deity. The de- 
velopment of every industry has been attended 
with the enactment of laws having special refer- 
ence thereto, to meet the conditions arising there- 
from. Thus, with a rise of intercourse among 
nations, came the law of the sea. Commercial 
relations necessitated the institution of laws to 
meet special requirements of business. Every 
special relation which has arisen among men has 
been characterized by special rules and regula- 
tions to protect the interests arising therefrom. 
Thus, the relation of dentist and patient is at- 
tended with certain special rights and responsi- 
bilities under the law, and a clear conception of 
the law of the subject must be preceded by an ac- 
curate knowledge of the nature of the relation out 
of which it grew. 

Nature of the Relation. — The relation of dentist 
and patient is contractual in character. The gen- 
eral principles of the law of contracts apply. The 
relation may be created by express agreement be- 
tween the practitioner and his patient, or it may 
be implied from the acts of the parties, and from 
the circumstances. The law imposes certain du- 
ties and obligations upon the relation, irrespective 
of the intention or wishes of the parties, and 
neither can escape them if he will. The wel- 
fare of the public is involved and, where the pub- 
lic is concerned, that consideration is supreme. 



ANALYSIS OF SUBJECT d 

The relation has certain fiduciary qualities also, 
and the practitioner holds the position of the su- 
perior. Before the relation exists, and during ne- 
gotiations, if any, leading thereto, the latter may 
treat with his prospective patient at arm's length 
and make any arrangement which is not uncon- 
scionable, but once the relation exists the law con- 
siders that the dentist is in a position of advan- 
tage and exacts of him the utmost good faith in all 
his dealings. The law justifies the patient in re- 
posing confidence in him, and in believing that the 
welfare of the patient will be considered para- 
mount to the personal interests of the dentist. 

Nature of the Profession. — In many respects 
dentistry is allied to the science of medicine, espe- 
cially to surgery. The operative dentist is in 
reality engaged in a limited branch of this art. 
The limitation is not in the gravity of the opera- 
tion, but in its character and the region operated 
upon. All surgery must necessarily have some 
relation to the use of the part which is the subject 
of the operation, with the intent to restore it as 
nearly as possible to its original usefulness. The 
operative dentist substitutes a new denture in 
place of one which has been lost; the surgeon as- 
sists nature to supply new bone for bone which 
he has removed. While, from their very nature, 
the operations are different in means and methods 
employed, their relations to the patient are sub- 
stantially the same, and have the same end in 



4: DENTAL JURISPRUDENCE 

view. The treatment of an ulcerated condition 
at the root of a tooth requires the same knowledge 
of wounds, infections and their cure that is re- 
quired in the treatment of an infected condition 
in any other part of the body, with possibly an 
added requirement of special skill in reaching the 
seat of the trouble. Therefore, the legal status 
of a dentist has much in common with that of the 
doctor. Where their duties are similar their 
rights and obligations are the same. If consid- 
ered as a science dentistry is progressive rather 
than exact. Its teachings are empirical, being 
founded upon the experiences and achievements 
of the past. 

Dentist — Physician — Mechanic. — In a certain 
case it was held that a dentist was a physician 
within the meaning of an Act of Congress exempt- 
ing from service in the army "all physicians who 
are now and for the last five years have been in 
the actual practice of their profession. ' ' x Hunter 
was a regularly graduated dentist, having com- 
pleted a three year special course at a leading in- 
stitution, which fact, taken in connection with his 
duty as a dentist, was the decisive point in the 
case. In another case, a dentist was held not to 
be a physician within the meaning of a statute 
which exempted from jury service practitioners 
of medicine, 2 and, in the same line, the Supreme 



lln re Hunter, 60 N. 0., 265. 
2 State v. Fisher, 119 Mo., 853. 



ANALYSIS OF SUBJECT 

Court of Mississippi held dentistry is not a trade 
and that a practitioner thereof is not a mechanic 
within the meaning of a law exempting from levy 
and sale on execution the instruments and tools 
of a mechanic for carrying on his trade. 3 A stat- 
ute in Michigan provided that communications to 
persons authorized to practice medicine or sur- 
gery, by patients in the course of their profes- 
sional employment, are privileged and cannot be 
inquired into in court. Under this statute it was 
held that dentists do not come within the terms 
''persons authorized to practice physic or sur- 
gery," and that communications to a dentist are 
not privileged under such a statute. 4 

Teeminology. — The law is not concerned in 
terminology or mere classification. It shapes it- 
self according to relations and subject-matter, not 
names. Whether the practice of dentistry is con- 
sidered a mechanical trade or a profession, its 
status in the eyes of the law is the same. By rea- 
son of the wonderful progress made during the 
last few years dentistry and dental surgery are 
justly entitled to be classed among the learned 
professions. 

Definition. — Dental jurisprudence deals with all 
those phases of the law which pertain to the den- 
tal profession and affect the dentist in his profes- 
sional relation and capacity. The law has its ori- 



3 Whitcomb v. Reid, 31 Miss., 567. 

4 People v. De France, 104 Mich., 563. 



6 DENTAL JURISPRUDENCE 

gin in the relation and subject-matter of the pro- 
fession. This branch of the law treats of the 
rights and responsibilities, directly and indirectly 
growing out of the relation of dentist and patient. 
It may be said to be the science which teaches the 
application of dental science and skill to the pur- 
pose of the law. 5 The subject is not susceptible of 
exact, succinct definition. 



i Taylor: Medical Jurisprudence, 17. 



CHAPTER II 
SKILL, CARE AND JUDGMENT 

General Observations. — Skill, care and judg- 
ment are required in the performance of every 
duty. They are inherent in our ideas of proper 
conduct. Their degree varies with the character 
of the act in question, and is proportionate to the 
nature of the calling involved and the purposes 
and aims of the efforts. They have a direct rela- 
tion to the risk involved. 

Questions of skill, care and judgment are always 
raised in actions of malpractice. The untoward 
result complained of may have happened because 
of the ignorance, carelessness or bad judgment of 
the party sought to be charged. 

Skill and Care Confused. — In stating conditions 
of liability the courts do not usually separate the 
qualifications of the practitioner from the manner 
of the application of those qualifications in the 
particular case. Notwithstanding this confusion, 
no injustice has been occasioned because the meas- 
ure of responsibility is substantially the same for 
both requirements, that is to say, the same stand- 
ard which is applicable to test the knowledge, skill 

7 



8 DENTAL JURISPRUDENCE 

and qualifications, of the party sought to be 
charged, is used to determine the care, diligence, 
vigilance and attention. It is common, therefore, 
for the courts to speak of skill and care- as though 
they were coordinate. Both are relative terms, 
but the variable quantity in each is not the same. 
In the matter of knowledge, skill and ability, the 
variable coefficient is the status or condition of the 
profession at the time and place, or similar places, 
and which, at any given time and place is neces- 
sarily a fixed quantity in all cases, while the vari- 
able coefficient in the question of care is the spe- 
cial circumstances of the particular case. It is 
most natural that the courts in their decisions 
should not distinguish between these two require- 
ments because, to the patient, the injury is the 
same whether it results from an absolute want of 
knowledge on the part of the dentist or from a fail- 
ure to apply his knowledge in the case at hand 
with proper care. When the patient dies, he is 
dead, and what shall it profit him whether he was 
sent to the shades through the ignorance or negli- 
gence of the practitioner? In practice, now that 
all dentists are required to stand a certain test as 
a condition to engaging in the practice of the pro- 
fession, the patient does not attempt to prove gen- 
eral ignorance or want of skill on the part of his 
dentist, but directs his efforts to proving that in 
his case the dentist did not apply and use the 



SKILL, CAKE AND JUDGMENT 9 

knowledge and skill demanded by the relation un- 
der the law. 

Relation to Legal Responsibility. — Implied 
Teems of Contract. — A person who offers his 
services for employment in any profession, as a 
practitioner in that profession, by implication 
contracts with his employer — 

First. — That he possesses that reasonable de- 
gree of learning, skill and experience which is usu- 
ally possessed by members of the profession at the 
time and place, and which is ordinarily regarded 
by the community, and by those conversant with 
that profession, as necessary and sufficient rea- 
sonably to qualify him for such employment; 

Second. — That he will use reasonable and or- 
dinary care and diligence in the exertion of his 
skill and the application of his knowledge to ac- 
complish the purpose for which he is retained, 
and 

Third. — That in the exertion of his skill and the 
application of his care and diligence, he will use 
his best judgment. 1 

Same Eestated. — The implied obligation of a 
practitioner, retained to treat a person profes- 
sionally, extends no further, in the absence of spe- 
cial agreement, than that he will indemnify his pa- 
tient against any injurious consequences resulting 



l Leighton v. Sargent, 27 N. H., 460; Kuhn v. Brownfield, 34 W. Va. 
252; Coombs v. King, 107 Me., 376. 



10 DENTAL JURISPRUDENCE 

from his want of the proper degree of skill, and 
from his failure to exercise due care under the 
circumstances, or to use his best judgment in the 
premises in the execution of his employment. 2 

Skill Required. — Use of Teem. — In this con- 
nection the word is used in its broadest sense and 
means, knowledge, qualification, ability, dexterity. 
When a person assumes the profession of den- 
tistry but makes no special representations as to 
his skill, the law implies that he thereby repre- 
sents that he has an ordinary degree of skill, 
knowledge, qualification and ability in that re- 
spect. 3 The presumption extends to the positive 
requirement that such skill shall be applied to the 
particular case in order that the patient may have 
the benefit thereof. 4 The law implies an under- 
taking on the part of the practitioner that he will 
use reasonable and ordinary skill in the profes- 
sional treatment of his patients. 5 

Generality of Such Requirement. — The same 
obligation rests on the practitioner in any profes- 
sion. Persons who offer themselves to the pub- 
lic as practitioners of any profession thereby im- 
pliedly promise the persons employing them that 
they possess the requisite skill and knowledge to 
enable them to handle or treat such cases as they 
undertake, with reasonable success. This rule 



2 Craig v. Chambers, 17 Ohio St., 253. 

3 Ritchie v. West, 23 111., 329, 330. 

4 Barnes v. Means, 82 III., 379, 384. 

5 Chitty on Contract, 553. 



SKILL, CAEE AND JUDGMENT 11 

does not require the possession of the highest, or 
even the average, skill, but only such as will ena- 
ble the practitioner to treat the cases undertaken 
safely and understandingly. "Every person who 
enters a learned profession undertakes to bring 
to the exercise of it a reasonable degree of skill. 
He does not, if he is an attorney, undertake at all 
events to gain the case ; nor does a surgeon under- 
take that he will perform a cure, nor does the lat- 
ter undertake to use the highest degree of skill, 
as there may be persons of higher education and 
greater advantages than himself. However, he 
does undertake to bring a fair, reasonable and 
competent degree of skill." 6 The reasonable 
and ordinary skill which is required of practi- 
tioners of any profession is such as those in the 
same general lines of practice ordinarily have and 
exercise. 7 

Presumption as to Skill. — There is no pre- 
sumption of law that the practitioner actually pos- 
sesses any skill, ability, knowledge or qualifica- 
tion, neither is there a presumption of want of 
such qualifications. 8 Generally speaking, the fact 
that a patient is injured, or that he received no 
benefit from the treatment, or that the dentist 
failed to accomplish satisfactory results, does not 
raise any presumption of want of skill or knowl- 
edge. Default in these respects must be estab- 



6 Lanphier v. Phipos, 8 Car. & P., 478. 

7 Carpenter v. "Walker, 170 Ala., 659. 

8 Davis v. Kerr, 239 Pa. St., 351. 



12 DENTAL JURISPRUDENCE 

lished from all the facts and circumstances in the 
case. The result of treatment is often only a 
minor consideration. A license is prima facie 
evidence of the possession of these qualifications 
and, in the absence of evidence to the contrary, is 
sufficient to establish that fact. 

A Eelative Standard. — The degree of skill re- 
quired is not capable of exact determination. It 
can be stated only in relative terms, which are 
necessarily variable in their nature. But each 
generation, — each moment — takes care of itself. 

The Eule Stated. — The test is, Does the prac- 
titioner possess the reasonable knowledge and 
skill ordinarily possessed by members of the pro- 
fession in average localities similarly situated at 
the time? The law does not require that he shall 
have the highest degree of knowledge and skill. 9 
The standard of requirement in this respect is not 
even as high as the average competent members 
of the profession in similarly situated communi- 
ties generally, because average means midway be- 
tween two extremes and, therefore, there must be 
some competent practitioners on both sides of the 
line. In its ultimate analysis the standard of ca- 
pacity is the lowest qualification tolerated by 
law. 10 

Degree of Skill as Eelated to Disease 
Treated. — The degree of skill required has no re- 



9 McNevins v. Lowe, 40 111., 209, 210 ; Ritchie v. West, 23 111., 329, 330. 

10 Holtzmaji v. Hay, 118 111., 534. 



SKILL, CAEE AND JUDGMENT 13 

lation to the character of the services to be per- 
formed in the particular case. The standard of 
knowledge and skill fixed by the law for the prac- 
tice of any profession has no relation to the condi- 
tion or disease treated, is not in proportion to the 
severity of the injury, nor the nature of the opera- 
tion, nor is it dependent upon the circumstances 
of the case. 11 

Best Skill. — A practitioner is not chargeable 
with negligence for failure to use his best skill, if 
he uses the skill which is exercised generally by 
practitioners of ordinary skill in similar locali- 
ties at the time, provided his conduct is consistent 
with due care under the circumstances. 12 

Eule Illustbated. — The skill required need not 
be that of thoroughly educated practitioners only, 
but must be that of the average, having regard to 
the improvement and advanced state of the pro- 
fession at the time of the treatment. 13 By ordi- 
nary skill is meant such skill as is commonly pos- 
sessed by ordinarily competent men engaged in 
the profession in similar localities at the time. 14 
The standard of ordinary skill may vary even in 
the same state according to the greater or less op- 
portunities afforded by the locality for observa- 
tion and practice. 15 A physician practicing in a 



llUtely v. Burns, 70 III., 162, 164. 

12 Dorris v. Warford, 124 Ky., 768; 9 L. R. A., 1090. 

13 Peck v. Hutchinson, 88 la., 320. 

14 Heath v. Glisan, 3 Ore., 64; Dashiell v. Griffith, 84 Md., 363. 

15 Smothers v. Hanks, 34 la., 289. 



14 DENTAL JURISPRUDENCE 

small village who undertakes to perform a difficult 
operation, is bound to possess that skill and abil- 
ity only which physicians and surgeons of ordi- 
nary ability and skill practicing in similar locali- 
ties, with opportunities for no large experience, 
ordinarily possess. 

Highest Skill. — He is not bound to possess the 
highest degree of art and skill possessed by emi- 
nent surgeons practicing in large cities. 16 

Locality Considered. — In determining what 
constitutes the reasonable and ordinary skill and 
diligence which it is the duty of a physician to 
possess and exercise, the test is the degree of skill 
and diligence which other physicians in the same 
general neighborhood, and in the same general 
line of practice, ordinarily have and practice. 17 
In other words, a physician must have such skill 
as physicians in the same general neighborhood 
in the same general line of practice ordinarily 
have and exercise in like cases. 18 A physician is 
required to use no more than the care and skill of 
the physicians of his neighborhood, if there are 
other physicians there presumably of average abil- 
ity when compared with similar localities. 

Ordinarily and Eeasonably Skillful only 
Considered. — In its ultimate analysis the rule 
means that the practitioner must exercise the av- 
erage degree of skill possessed by ordinarily and 



16 Small v. Howard, 128 Mass., 131. 

17 Force v. Gregory, 63 Conn., 167. 

18 Gates v. Fleisher, 67 Wis., 504 ; Nelson v. Harrington, 72 Wis., 



SKILL, CAEE AND JUDGMENT 15 

reasonably skillful members of the profession in 
such localities generally, and not a standard de- 
termined by the average skill in his own locality. 19 
It has been said that while the law does not exact 
the highest degree of skill and proficiency obtain- 
able in a profession, still it does not, on the other 
hand, contemplate mere average merit, including 
the skillful and unskillful. 20 In order to deter- 
mine who will come up to the legal standard, we 
are not permitted to aggregate into a common 
class, the quacks, the charlatans, the empirics, the 
new men who have had no practice, the old ones 
who have dropped out of the practice, the skilled 
and the unskilled, the good and the very best and 
then strike an average between them, as such 
method would place the standard too low. In 
fixing a standard and striking an average, only 
the ordinarily and reasonably skillful should be 
considered. It is not enough to render a practi- 
tioner liable to show that he has a less degree of 
skill than some other practitioners might have 
shown, or that he exercised a less degree of care 
than he himself might have been able to bestow; 
nor is it enough that he even acknowledges some 
want of care ; there must have been a want of or- 
dinary skill and care to such a degree as to have 
led to the bad results. 21 

Skill Applied. — If the ground of complaint be 



19 Gramm v. Boener, 56 Ind., 407; Kelsey v. Hay, 84 Ind., 

20Holtzman v. Hoy, 118 111., 534. 

21 Rich v. Pierpont, 3 Foster & P., 35. 



16 DENTAL JURISPRUDENCE 

stated as want of skill or ability, the evidence 
must have reference to these qualifications as dis- 
played in the particular case. It is quite clear 
that the treatment of the particular case might 
show such gross ignorance of the business of the 
practitioner as to put it beyond all doubt that he 
had not the amount of skill usually possessed by 
members of the profession or even, in fact, that 
he had no knowledge of his profession at all. 22 It 
might appear that the course pursued was wholly 
unknown to the profession and that it resulted, as 
it necessarily must, in detriment to the patient. 
Nothing further certainly would need to be shown 
to render answerable, for an injury done, one who 
should offer his services as a skillful practi- 
tioner. 23 In the absence of proof, the courts pre- 
sume that the work was skillfully and carefully 
done, and that the practitioner used his best judg- 
ment or rather, at least, the burden is on the pa- 
tient to establish the contrary, and in the absence 
of any proof, there would be no basis for a claim 
for liability. 24 

Skill Eelates to Time or Injury. — The in- 
quiry as to skill must be directed to the time of the 
alleged malpractice, not to a period long subse- 
quent thereto. Possession of skill today does not 
tend to establish skill two years ago. 25 



22 Com. v. Thompson, 6 Mass., 134. 

23 Leighton v. Sargent, 31 N. H., llff. 

24 State v. Housekeeper, 70 Md., 162. 

25 Leighton v. Sargent, 81 N. H., 119. 



SKILL, CAKE AND JUDGMENT 17 

Presumption feom Besult. — That a fractured 
limb is shorter than the other after the recovery 
of the patient, is not evidence that the practitioner 
was negligent, as such condition might result from 
the nature of the fracture or the condition of 
health and age of the patient. 26 The burden of 
explaining the fact is on the patient and he must 
show that the treatment of the case was the pri- 
mary cause for the shortening. 

Employed at Other Vocations. — In an action 
for malpractice, the patient may show that the 
practitioner is devoting time and attention to some 
other vocation, as such fact may have a bearing 
upon the question of his skill and care. 27 The 
manner in which the services were performed is 
the test of their character. 28 

Intoxication. — Evidence that the practitioner 
was intoxicated at the time of rendering the serv- 
ices alleged to be improper, is admissible as a part 
of the res gestae. 29 

Failure to Present Bill is no Admission of 
Malpractice. — In an action for malpractice, the 
patient cannot show that he has paid nothing for 
the services and that no bill has been rendered to 
him or charge made against him by the practi- 
tioner, as such failure is not an admission of 



26 Piles v. Hughes, 10 la., 579. 

27 Hess v. Lowrey, 122 Ind., 225; Mayo v. Wright, 63 Mich., 32. 

28 Bute v. Potts, 76 Cal., 304. 

29 Merrill v. Pepperdine, 9 Ind. App., 416. 



18 DENTAL JURISPRUDENCE 

guilt. 30 However, where that fact was introduced 
by the practitioner, it was held harmless under 
the particular circumstances. 31 

Care Required. — As a general rule, he whc un- 
dertakes for reward to perform any work, is bound 
to use a degree of care, diligence and attention 
adequate to the performance of his undertaking, 
according to the rules of the particular art in- 
volved. Care must be proportionate to the ex- 
tremities of the situation. 

Definition. — Care is attention with a view to 
safety or protection ; or oversight or watchful re- 
gard, implying concern or a sense of personal re- 
sponsibility, in an endeavor to promote an aim 
or accomplish a purpose. It is a relative term and 
varies according to the danger involved in the 
want of vigilance. Due care means attention ac- 
cording to circumstances. 

Carelessness is Not Misconduct. — The former 
is an act of omission and involves an abuse of dis- 
cretion under a definite obligation; the latter is 
an act of commission by violating a definite law. 
Misconduct is a forbidden act, while careless- 
ness is a forbidden quality of an act and is, neces- 
sarily, indefinite, depending upon the circum- 
stances. 32 

Care is a Relative Term.— The degree of care, 
like the degree of skill, is not capable of exact de- 

30 Baird v. Gillett, 47 N. Y., 186. 

3Uones v. Angel, 95 Ind., 376. 

32 Citizens Ins. Co. v. Marsh. 41 Pa. St.. 386, 394. 



SKILL, CAEE AND JUDGMENT 19 

termination or statement. Here, again, we are 
forced to resort to relatives. Ordinary care and 
diligence, under the special circumstances con- 
stitutes the measure of duty and responsibility of 
the practitioner in the application of his skill and 
knowledge in the treatment of his patients. He 
must act with the reasonable care and diligence 
ordinarily and reasonably used by ordinary prac- 
titioners of the profession in average localities 
similarly situated at the time. 33 

The Bule Stated. — The test is, What tvould an 
ordinarily skillful, careful and prudent practi- 
tioner have done under the circumstances? 

Pkesumption. — In the absence of evidence, the 
law indulges no presumption of want of care or 
diligence, neither does it infer the presence of 
these qualities. 34 Ordinarily, the fact that injuri- 
ous results followed treatment does not justify an 
inference of negligence or the want of care or dili- 
gence. The consequences complained of may be 
the result of the patient's condition, and in no 
respects due to the conduct of the practitioner. 
All the circumstances must be taken into consid- 
eration in determining what is due care. 

Highest Possible Cake not Eequiked. — A prac- 
titioner is not required, as a matter of law, to use 
the highest degree of care of which he is capable, 
if the care which he does exercise is that degree 



33 Ritchie v. "West, 23 111., 329, 330; McNevins v. Low, 40 111., 
210; Beck v. German Klinik, 78 la., 696. 

34 Davis v. Kerr, 239 Pa. St., 351. 



20 DENTAL, JURISPRUDENCE 

which is exercised generally by practitioners of 
usual and ordinary care, in similar localities, un- 
der the same or similar circumstances, provided 
his conduct is consistent with ordinary skill, hav- 
ing reference to the state of the science in the lo- 
cality at the time. The reasonable and ordinary 
care which is required of practitioners of a pro- 
fession, is such care as those in the same general 
neighborhood, in the same general lines of prac- 
tice, ordinarily exercise in like cases. 35 

Judgment Required. — Generality of Applica- 
tion. — In the discharge of every mandate, there 
is involved the exercise of more or less judgment. 
However menial the service may be, a certain lat- 
itude of discretion is necessarily incident to its 
performance. You cannot eliminate this human 
element from any effort. From the laborer who 
digs in the ditch to the surgeon who holds a life 
in his hands, the element of judgment in the dis- 
charge of his duties is an essential part of the 
undertaking. In employing a person for any 
task, the employer knows that the exercise of 
that person's judgment will be involved in the 
performance of the services, and it is that per- 
son's judgment which is being paid for. We do 
not expect omniscience nor infallibility, and the 
law does not require that standard. A man's 
judgment may be good, bad or indifferent and, 
whichever it is, the employer engages that and 



35 Carpenter v. Walker, 170 Ala., 650. 



SKILL, CAKE AND JUDGMENT 21 

nothing more, and the servant has discharged his 
duty when he has given his employer his best judg- 
ment. 

Eule Stated. — In every contract of service the 
law injects the stipulation that the servant will 
use his best judgment in the discharge of his du- 
ties. 

Latitude of Discretion. — In professional serv- 
ices, there is a wide latitude for the exercise of 
this discretion, and the practitioner fulfills his ob- 
ligation in this respect when, in good faith and the 
exercise of due care, after reasonably informing 
himself, he determines the course to pursue. The 
dental practitioner is continually required to ex- 
ercise his discretion as to the course of treatment, 
or method of operation to be pursued. Whether 
to extract, treat and fill, crown, bridge or plate, 
are continually recurring questions which he must 
answer. In this respect he owes his patient his 
best judgment and nothing more. 36 Of course, as 
a basis for the exercise of that judgment he owes 
his patient the obligation carefully to diagnose 
the case, and reasonably to inform himself of con- 
ditions and circumstances. 

No Guaranty of Correct Judgment. — He does 
not guarantee that his judgment is correct, nor 
that it is as good as the judgment of some other 
practitioner. "When, under these circumstances, 
he gives his patient the benefit of the exercise of 



36McKee v. Allen, 94 111. App., 147. 



22 DENTAL JURISPRUDENCE 

his best discretion, he has done all that the law re- 
quires and he is not liable in damages, even though 
his judgment is wrong and his patient is injured 
thereby. Of course, reasonable information must 
precede the exercise of good judgment. Good 
faith requires that the practitioner understands 
before he decides. If he makes a proper investi- 
gation, in good faith, he is not liable, even though 
his diagnosis is wrong, and, on the other hand, as- 
suming that his diagnosis is correct and that, in 
the exercise of his best judgment, he arrives at a 
wrong conclusion, still he is not liable for the in- 
convenience or damage which his patient may suf- 
fer. 37 

Different Courses. — Where different courses 
of treatment or procedure may be reasonably ap- 
plied, and a patient does not limit the practitioner 
to any particular treatment or procedure, the lat- 
ter has a right to use his best judgment as to the 
manner and means of treatment and procedure, 
and he will not be liable in an action for malprac- 
tice so long as his conduct is not inconsistent with 
ordinary skill and due care under the circum- 
stances. Where a practitioner, in all respects, 
uses his best judgment under the circumstances, 
he is not liable in damages to his patient, if his 
conduct was not inconsistent with the possession 
and use of ordinary skill and due care under the 



37 Patten v. Wiggins, 51 Me., 594; Williams v. Peppleton, 3 Ore., 139; 
Fisher v. Niccolls, 2 111. App., 484, 



SKILL, CAKE AND JUDGMENT 23 

circumstances, even though some other practi- 
tioner would have pursued a different course, and 
the results show that the former was mistaken. 38 
Specialists. — Where a person holds himself out 
as a specialist in the treatment of a certain organ, 
anatomical part, physiological function, injury or 
disease, he is bound to bring to the aid of the one 
employing him as such, both in diagnosis and 
treatment, that degree of skill and knowledge 
which is ordinarily possessed by those who de- 
vote special study and attention to that particular 
organ, part, function, injury or disease, in the 
same general locality, having regard to the state 
of scientific knowledge at the time. 39 Thus, one 
who undertakes to treat an eye as a specialist, 
must have that degree of care and skill which is 
ordinarily possessed by physicians who devote 
special attention and study to the treatment of 
that organ. 40 The dentist who makes a specialty 
of oral surgery, or of extraction, must give to his 
patient that degree of knowledge and skill which 
is ordinarily possessed by such specialists in the 
general locality at the time. 41 If the patient re- 
lies on specific representations of extraordinary 
skill and ability on the part of the practitioner, he 
must allege such facts in his declaration. 42 



38Luka v. Lo-WTie, (Mich.) 136 N. W., 1106; 41 L. R. A., 29( 
39Rann v. Twitchell, 82 Vt. 79; 20 L. R. A., 1030. 

40 Peeney v. Spalding, 89 Me., III. 

41 Baker v. Hancock, 29 Ind. App., 456; 20 L. R. A., 1030. 

42 Goodwin v. Hersam, 65 Minn., 233. 



24 DENTAL JURISPRUDENCE 

Progress. — Practitioners must progress with 
their profession. They cannot cling to antiquated 
and abandoned methods, practices, remedies and 
appliances and escape liability for injuries re- 
sulting therefrom. They should not resort to ev- 
ery newfangled theory, nor always test the latest 
fad, but the best generally approved improvements 
should be resorted to when the proper occasion 
arises, having respect to the locality and time. 
What was proper a few years ago may be mal- 
practice today. Eesponsibilities are based on 
present enlightenment and experience. 43 

Non-Professional Volunteer. — These require- 
ments of skill, care and judgment are implied from 
the relation of practitioner and patient, and there- 
fore do not apply where the relation does not ex- 
ist. If a person does not profess to be a dentist 
or to practice as such, and is merely asked his ad- 
vice as a friend or neighbor, he does not incur any 
professional responsibility, and in the absence of 
malice on the part of the volunteer the person fol- 
lowing his advice would have to bear the conse- 
quences. Thus, the friend who in case of tooth- 
ache or other infirmity volunteers advice and as- 
sistance to relieve the distress, does not thereby 
undertake to possess the qualifications of a den- 
tist, and where there is no such implied represen- 
tation the want of such qualifications does not 



43 McCandless v. McWha, 22 Pa. St., 261; Van Hooser v. Berghoff, 
90 Mo., 487; Gramm v. Boener, 56 Ind., 497. 



SKILL, CAEE AND JUDGMENT 25 

create a liability, even though injury results to the 
recipient of the services by reason of default in 
this respect. 44 

However, where the sufferer understands that 
the party rendering the assistance is a dentist and 
accepts the services in the belief that he is a mem- 
ber of the profession, and where the circum- 
stances are such as to justify him in entertaining 
such belief, the party rendering the assistance 
may be chargeable with the responsibility of a 
member of the profession and be required to re- 
spond in damages for any injury resulting by rea- 
son of his lack of such qualifications. 45 



44McNevins v. Lowe, 40 111., 209; Higgins v. McCabe, 120 Mass., 13; 
Shields v. Blackburn, 1 H. Bl., 158; Beardslee v. Richardson, 11 Wend., 
25. 

45Matthei v. Wooley, 69 111. App., 654. 



CHAPTER III 
MALPRACTICE 

General Explanation. — Definition. — Malprac- 
tice is improper treatment of a patient by a prac- 
titioner, whereby the patient is injured. It means 
default in some one or more of the legal require- 
ments of skill, care and judgment. The fault may 
be an act of either omission or commission, and 
may result from ignorance, carelessness or poor 
judgment. Besides, there is the case where the 
patient is operated upon without his consent or 
over his objection and, though the operation may 
be skillfully performed, the act is in the nature 
of a trespass and constitutes an assault for which 
an action will lie. This action is in the nature of 
an action for malpractice. 

Essentials. — Both (a) improper treatment and 
(b) injury therefrom must be shown. Improper 
treatment without injury, or injury not shown to 
be the result of improper treatment, is not enough 
to make a case of malpractice in law. Unless 
both exist in the relation of cause and effect, and 
not as a mere coincidence, the patient has no rea- 
son for complaint, but if, because of default 
shown, the service did the patient no good, the 

26 



MALPRACTICE 27 

practitioner would not be entitled to receive any 
fee in the absence of a special agreement for a 
fee in any event. Malpractice is a branch of the 
general law of negligence. 

Negligence. — Definition. — Negligence is the 
absence of care according to circumstances. 1 
Negligence ''is the failure to observe, for the 
protection of the interests of another person, that 
degree of care, precaution and vigilance which the 
circumstances justly demand, whereby such other 
person suffers injury." 2 The dentist who fails 
to do what a reasonably prudent dentist would 
have done under the circumstances, or does what 
a reasonably prudent dentist would not have done 
under the circumstances, whereby the patient is 
injured, is considered guilty of negligence and is 
liable for the damages sustained by his patient. 
Intention to injure is not an essential element in 
an action for malpractice ; in fact, the term neg- 
ligence excludes the idea of intent. 3 

Good Faith. — Even though the practitioner 
acted in the utmost good faith, believing his treat- 
ment proper and safe, still, if he was not suffi- 
ciently qualified under the law, or if he omitted 
some duty or performed some negligent act, 
whereby his patient was injured, he will be liable 
for the consequences. Negligence may be the re- 



1 Turnpike Co. v. R. Co., 54 Pa. St., 219, 225; Barker v. Essex, 27 
Vt., 62; C. B. & Q. R. Co. v. Johnson, 103 111., 512, 518 et seq. 

2 Cooley on Torts, 630. 

3Bindbental v. Street Rd. Co., 43 Mo. App., 463, 471. 



28 DENTAL JURISPRUDENCE 

suit of either ignorance, carelessness or poor 
judgment and, in either event, the practitioner 
will be liable to the patient for the consequent 
damages; but if poor judgment is relied upon as 
the basis of liability the error must be so gross as 
to establish either ignorance or carelessness, or 
that the party did not, in good faith, use his own 
best judgment. 

Carelessness Never Excused. — That others have 
been similarly careless is no defense to an action 
for malpractice. The fact that all men are at 
sometime careless, does not excuse any man for be- 
ing careless at any time. 4 

Patient's Duty to Seek Other Professional As- 
sistance. — Ordinarily the patient is not bound to 
seek the aid of other practitioners to mitigate the 
consequences of the mistakes of the attending 
practitioner. 5 

Responsibility for Negligence of Nurses. — The 
practitioner is not responsible for the conse- 
quences of the carelessness of nurses over whom 
he has no control. 6 

Usual Treatment. — The practitioner is entitled 
to show by expert evidence that the treatment 
given was such as a practitioner of ordinary 
knowledge and skill would, and ought to have 
given. 7 



4 Samuels v. Willis, 133 Ky., 459; 19 A. 0., 188 (A sponge case). 

5 Chamberlin v. Morgan, 68 Pa., 168. 

6 Sanderson v. Holland, 39 Mo. App., 233; Baker v. Wentworth, 155 
Mass., 338. 

7 Quinn v. Higgins, 63 Wis., 664. 



MALPRACTICE 29 

Relation of Negligence to Injury.— Where a 
physician diagnoses and treats a broken arm as 
a sprain, resulting in permanent impairment of 
the usefulness of the arm, and the only claim of 
negligence was the failure to take an X-ray pho- 
tograph, it was considered that the patient had 
not made out a cause of liability, where it ap- 
peared that the diagnosis was proper and the 
physician acted with due care in reference there- 
to. 8 It has been held that failure of a physician 
to discover a serious rupture of the perineum, 
after repeated examinations for that purpose, is 
actionable negligence. 9 In the case cited, the con- 
dition must have been such as to make the fail- 
ure to discover the ailment inconsistent with rea- 
sonable skill or ordinary care. The jury may 
find that it is negligence for an attending 
physician to fail to discover and remove a 
detached portion of the placenta after a miscar- 
riage. 10 

Experimentation.— The policy of the law is very 
strict against practitioners trying experiments. 
In other words, a physician cannot experiment 
with his patients to their injury. 11 

Established Mode of Treatment.— Generally 
speaking, where there is an established treat- 
ment, it must be followed substantially. In such 



8 Wells v. Ferry-Baker Lumber Co., 57 "Wash., 658. 

9 Lewis v. Dwinell, 84 Maine, 487. 

10 Moratzky v. Wirth, 67 Minn., 46; See Langford v. Jones, 18 Ore., 
407. 

11 Hasse v. Knippel, 1 Mich. N. P., 102. 



30 DENTAL JURISPRUDENCE 

cases progress is at the risk of the practitioner. 12 
If the ordinary and established practice of the 
profession is to treat an ailment in a particular 
manner, it is the practitioner's duty substantially 
to follow such practice, and if he adopts some 
other mode that proves injurious, he is guilty of 
negligence. Where a particular mode of treat- 
ment, to the exclusion of others, is upheld by the 
consensus of opinion among the reasonably skill- 
ful members of the profession, and sustained by 
the general experience of practitioners, it must be 
followed by the practitioner and, if he sees fit to 
experiment with other modes, he does so at his 
peril. 13 The rule does not apply, where, for any 
reason, the established mode of treatment cannot 
be adopted. 14 However, the burden is upon the 
patient to show that the departure from the estab- 
lished practice was the cause of the injury. 15 

What Constitutes Negligence is a Question of 
Law. — While the question as to what is the proper 
degree of skill and eare required of a practitioner 
is a question of law, for the court to determine 
and announce, still the question as to whether or 
not these requirements were present in the par- 
ticular case, is a question of fact for the jury to 
determine. 10 In other words, it is for the jury 



12 Carpenter v. Blake, 60 Barb., 488. 

13 Jackson v. Burnham, 20 Col., 532. 
liHallam v. Means, 82 111., 379. 

15 Winner v. Lathrop, 67 Hun., 511. 

16 Harriett v. Plimpton, 166 Mass., 585 ; Langford v. Jones, 18 Ore., 
307; Olmstead v. Gere, 100 Pa., 127. 



MALPEACTICE 31 

to say, from all the evidence, whether or not the 
treatment amounted to negligence, under the rule 
of skill, care and judgment required by the law. 17 
(For a full discussion of the subject, as to physi- 
cians, see Whitesell v. Hill, (101 la., 629) in 37 
L. E.A. (0. S.),830.) 

Negligence of the Patient. — The causal relation 
between a practitioner's conduct, and his pa- 
tient's injury, in connection with operation or 
course of treatment, and the conduct of the pa- 
tient, presents itself in several different aspects 
involving different phases of liability. 

Fiest. — The patient alone may be at fault, in 
which event the practitioner will not be liable for 
the damages sustained. Under this condition of 
facts, the want of responsibility is the same, with- 
out regard to the time of the negligence, with 
reference to the time of the operation or the 
course of treatment; that is, whether (a) be- 
fore, (b) during the time of, or (c) after the serv- 
ices. 

Second. — The practitioner alone may be at 
fault, in which event he will be liable to the pa- 
tient for the entire damage sustained by the latter 
by reason of such negligence. 

Third. — Both patient and practitioner may be 
at fault, in which event the question of liability 
is affected by the fact as to whether the negli- 
gence of the patient was (a) contemporaneous or 



17 Hewitt v. Eisenbart, 36 Neb., 794; Tifft v. "Wilcox, 6 Kans., 46. 



32 DENTAL JUBISPKUDENCE 

concurrent, or (b) in order of sequence, with the 
negligence of the practitioner. 

(a) When the negligence of both operates con- 
temporaneously, concurrently and jointly to pro- 
duce the injury, the patient cannot recover but 
must bear the entire loss alone. 

(b) When the negligence of both operates suc- 
cessively to produce the injury to the patient, 
the practitioner will be liable for all damages 
naturally flowing from his own negligence, but he 
will not be responsible for the aggravation of the 
injury occasioned by the subsequent negligence of 
the patient. 18 

Confusion Among Authorities. — There is con- 
siderable confusion among the decisions with ref- 
erence to this subject, and some courts have en- 
tirely lost sight of the foregoing distinctions, but 
wherever the attention of the court has been di- 
rected to the subject, these distinctions have been 
recognized. 

Contributory Negligence. — Definition. — Con- 
tributory negligence is such an act or omission on 
the part of the patient, amounting to want of 
ordinary care as, concurring with the negligent 
act or omission of the practitioner, is the prox- 
imate cause of the injury. 19 Where the negli- 
gence of the person injured primarily contributed 



18 Sauers v. Smits, 45 Wash., 559; 17 L. R. A., 1242; Sanderson v. 
Holland, 39 Mo. App., 233; Wilmot v. Howard, 39 Vt. 447; Du Bois v. 
Decker, 130 N. Y., 325; See Geiselman v. Scott, 25 O. St., 86. 

19 29 Cyc, 505. 



MALPKACTICE 33 

to the injury, by direct association with the cause 
of action, he cannot recover damages. 20 Both 
parties being in fault with reference to the cause 
of the injury complained of, the law leaves the 
burden rest where it fell. 

Reason fob the Rule. — Though the action of 
malpractice is in the nature of an action for a 
breach of the implied terms of a contract, the 
general rules of law governing contributory neg- 
ligence are applied where both are contempo- 
raneously and concurrently at fault, because of 
the difficulty which would usually be encountered 
in an attempt to apportion the injury between 
them. In this respect, however, there is practi- 
cally no difference between actions for malprac- 
tice and other actions in tort, because, as a mat- 
ter of fact, all actions sounding in tort have their 
origin in and are based upon a breach of some 
obligation imposed by law. 

Illustrations of the Rule. — Where a pa- 
tient fails to return to the office for further treat- 
ment, as directed, whereby he suffers injury, 
though the treatment was proper and skillful, his 
trouble is attributed to his own negligence and he 
cannot recover from the practitioner. 21 The re- 
fusal of the patient to employ an assistant for the 
practitioner, when the same is necessary and rec- 
ommended by the practitioner, and the patient is 



20 Littlejohn v. Arbogast, 95 111. App., 605; Hearing v. Spicer, 92 
111. App., 449. 

2lDashiell v. Griffith, 84 Md., 363; 17 L. R. A, 1243. 



34 DENTAL JURISPRUDENCE 

injured by reason of such want of assistance, such 
conduct of the patient is negligence on his part, 
entering into the cause of action itself, and will 
defeat his right of recovery unless the conduct of 
the practitioner was such as to be inconsistent 
with skill, care and good judgment in the prem- 
ises. 22 A practitioner is liable for the injuri- 
ous results of his own negligence, although the 
subsequent acts of the patient, or others over 
whom the practitioner had no control, may have 
aggravated the injury. 23 If the improper treat- 
ment makes the injury unavoidable and inev- 
itable, an action against the practitioner will not 
be defeated by the fact that subsequent misman- 
agement, or negligence of the patient or others, 
may have aggravated the trouble. 24 

Independent Treatments. — If two dentists are 
performing independent services for a patient, 
neither is liable for the independent negligence of 
the other. 25 A practitioner is liable to his patient 
for the damages resulting from his own negli- 
gence, even though the injuries are aggravated by 
the subsequent negligence of others. 26 

Presumption from Injury or Failure to Cure. — 
Since injurious consequences, or failure to cure 



22 Hearing v. Spicer, 92 HI. App., 449. 

23 Hathorn v. Richmond, 48 Vt., 557. 
24Wilmot v. Howard, 39 Vt., 449. 

25 Foster v. Wadsworth Howland Company, 168 111., 514; 57 L. R. A., 
1175. 

26Wilmot v. Howard, 39 Vt., 449; Hathorn v. Richmond, 48 Vt., 557; 
Sanderson v. Holland, 39 Mo. App., 223; Sauers v. Smits, 49 Wash., 
557; 17 Li, S. A., 1242. 



MALPEACTICE 



35 



or relieve, ordinarily do not establish either want 
of skill or want of care, it follows that proof of 
injurious results, or of such failure, is not suffi- 
cient to fasten liability upon the professional 
man. A practitioner cannot be regarded as an 
insurer of a successful result from his treatment, 
and to base a liability on failure alone would be 
to make him a guarantor. 27 The mere failure to 
effect a cure or afford relief, raises no presump- 
tion of either ignorance, negligence or poor judg- 
ment. 28 The fact that the patient grew worse 
under the treatment, and improved when the serv- 
ices were dispensed with, is not of itself sufficient 
to establish malpractice, as such facts may have 
been mere coincidences. 29 

Suit in Tort. — Actions for malpractice are al- 
most invariably in tort, that is, ex delicto in char- 
acter. However, a practitioner may make a spe- 
cial contract with his patient, and for violation 
of the same he will be liable in contract; but 
where the action is for a breach of the obligation 
imposed by law as a matter of public necessity 
and policy, it is in the nature of tort and not in 
contract. 30 As said by the court in Eandolph v. 
Snyder, 139 Ky., 159 — "If the defendant made a 
contract with the plaintiff to treat him and his 



27 Quinn v. Donovan, 85 111., 194, 195 ; McKee v. Allen, 94 111. App., 
147; Yunker v. Marshall, 65 111. App., 667. 
28Tifft v. "Wilcox, 6 Kans., 46. 

29 Wurdenmann v. Barnes, 72 Wis., 206; Ely v. Wilbur, 49 N. J. L., 
685. 

30 Carpenter v. Walker, 170 Ala., 659; 25 A. C, 866. 



36 DENTAL JURISPRUDENCE 

family, as alleged in the petition . . . and simply 
broke the contract by refusing to come when sent 
for . . . the right of action would be simply for 
the breach of the contract, and there would be no 
right of action in tort. But if the physician came 
and undertook the case and, having undertaken it, 
was negligent in his treatment, then a cause of 
action in tort may be maintained for the non-per- 
formance of the duty which the law cast upon him 
when he undertook to treat the case. ' ' In actions 
of malpractice the usual allegations of employ- 
ment of the practitioner by the patient are mere 
matters of inducement to show the relation exist- 
ing between the parties and, inferentially, the ob- 
ligation imposed by law on the practitioner by 
reason thereof. 

Agreement Excusing Negligence. — A practi- 
tioner cannot contract against his responsibility 
for negligence growing out of his want of skill or 
care, or his failure to exercise his best judgment 
in his services to his patient, as such an agree- 
ment is against public policy. 31 A practitioner 
who accepts but fails to respond to a call cannot 
be said to be guilty of malpractice, and if the pa- 
tient is damaged, his action ought to sound in 
contract. 32 But even in such case, the question 
might arise as to whether the delay in responding 



31 Hales v. Raines, 162 Mo. App., 46. 

32 See Adams v. Henry, 165 Mich., 554; 24 A. C, 829. 



MALPRACTICE 37 

was due to refusal to call at all, or to negligence in 
determining when to make the visit. 

Exhibiting Injury. — In an action for malprac- 
tice, the patient may exhibit the injured member 
to the jury in order that they may determine the 
nature of the trouble charged to the practitioner, 
provided the demonstration does not involve in- 
decent exposure. 33 

Accident. — Statement of the Eule. — No lia- 
bility attaches for injuries resulting from pure ac- 
cident. A patient may be injured under circum- 
stances which, in law, are considered purely 
accidental. In such cases the practitioner is not 
liable for the damages sustained by the patient 
from the injury. The term accident, as here 
used, necessarily excludes the idea of negligence 
on the part of the practitioner. Merely calling an 
act, which resulted in injury to another, an acci- 
dent, will not relieve the party of responsibility 
for his negligence. The untoward result must 
have been what, in law, is recognized as an acci- 
dent. 

Definition. — The Century Dictionary defines 
accident as "anything that happens or begins to 
be, without design, or as an unforeseen effect ; that 
which falls out by chance; a fortuitous event or 



33 Lenark v. Dougherty, 153 111., 163, 165 ; Jefferson Ice Co. v. 
Zwicokoski, 78 111. App., 646; Fowler v. Sergeant, 1 Grant's Cases 
(Pa.) 355; Hess v. Lowrey, 122 Ind., 225; Freeman v. Hutchinson, 
15 Ind. App., 639. 



38 DENTAL JURISPRUDENCE 

circumstance." Where an event takes place, the 
real cause of which cannot be traced or is, at least, 
not apparent, it ordinarily belongs to that class 
of occurrences which are designated as purely ac- 
cidental. 34 Even though accident and negligence 
be not opposites, they cannot be regarded as iden- 
tical, without confounding cause and effect. Ac- 
cident and its synonyms, casualty and misfor- 
tune, may proceed or result from negligence or 
other causes known or unknown. 35 Where the 
negligence of the operator contributed to the un- 
toward result, it was not, as to him, an accident 
within the meaning of the law of negligence. 
There must be an entire absence of negligence on 
the part of the party sought to be charged. 36 
For a purely accidental occurrence causing dam- 
age, without fault of the person to whom it is 
attributable, no action will lie; for, though there 
is damage, the thing amiss, — the injuria — is want- 
ing. 37 

Accident and Negligence. — An occurrence 
which, to the patient, may properly be spoken of 
as an accident, is not necessarily an accident, 
from the viewpoint of the responsibility of the 
practitioner. If the latter was at fault, the oc- 
currence, as to him, was not an accident. Where 
an accident, combined with the negligence of the 



34 Wabash, etc., R. Co. v. Roclte, 112 Ind., 404. 

35 McCarthy v. N. Y., etc., R. Co., 30 Pa. St., 347, 351. 
30 Sutton v. Boimett, 114 Ind., 243. 

37 Cooley on Torts, 80. 



MALPEACTICB 39 

practitioner to produce the injury to the patient, 
and without which negligence the injury would 
not have happened, the former is liable for the 
entire damage. 38 

Gratuitous Services. — Kesponsibility is not de- 
pendent upon nor related to the size or source of 
the fee. Where the relation exists, the liability 
attaches. When a professional man undertakes 
to render professional services to a patient, the 
law, from necessity, imposes upon him the duty 
to exercise ordinary skill, care and judgment, and 
default therein, resulting in damage to the pa- 
tient, constitutes a cause of action. Therefore, 
that the services were rendered gratuitously or 
were paid for by a third party is no defense to an 
action for malpractice. 39 

Arbitrary Refusal to Take Case. — Since a pro- 
fessional man is not required to render profes- 
sional services to everyone, he may arbitrarily re- 
fuse to undertake the treatment of a case and, in 
such event, he will not be liable for malpractice 
whatever may be the consequence to the appli- 
cant. 40 The case last cited was an action under 
a statute based upon Lord Campbell's Act, giving 
a right of action for wrongfully causing the death 



38Rockfalls v. Wells, 169 111., 224; Weick v. Lauder, 75 111., 93; 
I. C. R. Co. v. Siler, 229 111., 390; Joliet v. Verley, 35 111., 58; Car- 
terville v. Cooke, 129 111., 152; Joliet v. Shufeldt, 144 111., 403. 

39 Peck v. Hutchinson, 88 la., 320; Pippin v. Sheppard, 11 Price, 
400; Becker v. Janinski, 15 N. Y. Supp., 675; DuBois v. Decker, 130 
N. Y., 325. 

40 Hurley v. Eddingfield, 156 Ind., 416. 



40 DENTAL JURISPRUDENCE 

of a person. Suit was brought by the adminis- 
trator of a deceased person against a physician 
charging him with wrongfully causing the death of 
the intestate, and demanding ten thousand dol- 
lars. The defendant was a licensed physician 
who was, and for a number of years had been, 
practicing medicine in the locality and who held 
himself out to the public as a general practitioner 
in that profession. He had previously been the 
family physician of the deceased. It appears that 
the decedent became seriously ill and sent for the 
defendant, by a messenger who informed the de- 
fendant of the extreme sickness of the decedent, 
tendered him his usual fee for services and stated 
to him that no other physician was procurable at 
the time, and that decedent was relying on him for 
professional attention and services. In fact, no 
other physician was procurable at the time and 
decedent did rely upon the defendant for profes- 
sional assistance and relief. Without any reason 
whatever the defendant refused to accept the call 
or render aid to the decedent. No other patients 
were requiring his immediate attention and he 
could have responded to the call without incon- 
venience. Death ensued without the fault of the 
decedent and, in the complaint, it was alleged to 
have been caused solely from the act of the de- 
fendant in refusing to accept and respond to the 
call. It appears to have been conceded by the 
plaintiff that there is no common law liability on 



MALPKACTICE 41 

the part of the physician to render professional 
services to all who apply and, therefore, this ques- 
tion was not directly before the court. The real 
contention of the plaintiff was that the statute, re- 
quiring parties who desire to practice medicine to 
procure a license, implied that obligation. The 
statute in force at the time provided for a Board 
of Examiners, standard of qualification, examina- 
tion of applicants, license to those found qualified, 
and prescribed penalties for practicing without a 
license. The court held that the statute is a pre- 
ventive, not a compulsive, measure ; that in obtain- 
ing permission from the State to practice medi- 
cine, the licensee does not engage that he will 
practice at all, nor does he promise to render the 
services on any other terms than he may choose 
to accept or adopt, and that by the fact of issuing 
a license, the State does not require that the licen- 
see shall in fact practice the profession, neither 
does it stipulate that he must serve all who need 
him. 

Civil Rights Acts. — Ptjbpose. — The Civil Eights 
Acts of the various states are intended for the 
protection of all citizens in their civil and legal 
rights, their general purport being to entitle all 
persons within the jurisdiction of the state, re- 
gardless of color or race, to the full and equal 
enjoyment of all the accommodations, advantages, 
facilities, conveniences and privileges of inns, res- 
taurants, eating houses, barber shops, public con- 



42 DENTAL JURISPRUDENCE 

veyances on land and water, theatres, and all other 
places of public accommodation and amusement, 
subject only to the conditions and limitations es- 
tablished by law, and applicable alike to all citi- 
zens, irrespective of race, color or previous 
condition of servitude. 41 

Social and Professional Relations. — The busi- 
ness to which these statutes apply must be of a 
public character; the statutes do not attempt to 
control the conduct of the citizen in his private 
matters. The statutes do not attempt to confer 
equality of social rights or privileges or enforce 
social intercourse. The only effect of the 13th 
and 14th amendments to the Federal Constitution, 
and of the statutes passed in pursuance thereof 
by Congress and the several states, is to place all 
citizens on an equality before the law. 42 

Dentists Not Included. — These statutes and 
amendments do not require a dentist to undertake 
the relation of dentist and patient with a party, re- 
gardless of race, color or previous condition of 
servitude. They do not attempt to abridge his 
right to determine with whom he will contract 
and for whom he will render services. While he 
may hold himself out as ready to accept as pa- 
tients all persons presenting themselves for that 
purpose who need his services, still his work, be- 



41 Baylies v. Curry, 128 111., 287. 

*2 Ganaway v. Salt Lake Dramatic Asso., 17 Utah, 37; Civil Rights 
Act, 1 Hughes (U. S.) 541; Coger v. N. W. Union Packet Co., 37 la., 
145; People v. Washington, 36 Cal., 658. 



MALPEACTICE 



43 



ing professional in character, is not sufficiently 
public in its nature to bring it within the provi- 
sions of these statutes. 

Wrong Diagnosis. — Generally speaking, li- 
ability for malpractice attaches by reason of im- 
proper treatment rather than from any mistaken 
diagnosis. The patient is not materially con- 
cerned in what the practitioner thinks his trouble 
to be, except as his conclusion takes concrete form 
by treatment for the supposed malady. 43 A 
wrong diagnosis, not followed by improper treat- 
ment and injury to the patient, is not sufficient 
to predicate an action for malpractice, 44 but where 
the sole purpose of the employment is the diag- 
nosis and report of the same, negligence or bad 
faith in making the examination, resulting in a 
wrong conclusion and erroneous report, and con- 
sequent damages to the patient, constitutes a 
cause of action. 45 In the case last cited a young 
man was engaged to be married but the father of 
the girl refused his consent because of rumors that 
the fellow was afflicted with a venereal disease. 
He denied the charge and agreed with the father to 
submit to an examination by a physician selected 
by the father at the latter 's expense. The ex- 
amination was made and the physician reported 
that the fellow had such a disease. In conse- 
quence, the engagement was broken off and the 



43 Grainger v. Still, 187 Mo., 197. 

44 Tomer v. Aiken, 126 la., 114. 

45 Harriott v. Plimpton, 166 Mass., 585. 



44 DENTAL JURISPRUDENCE 

fellow brought various suits for conspiracy, slan- 
der and malpractice against the father, physician 
and others. On trial the suits were consolidated. 
It was found that the young man was not dis- 
eased ; that the father and physician acted in good 
faith and that there was no conspiracy. There 
was technical defect in the pleadings in the slan- 
der suits and, therefore, liability on that score 
was not considered. In the suit for negligence or 
malpractice against the physician, the trial court 
instructed the jury to find a verdict in favor of 
the defendant, to which the plaintiff excepted and, 
on appeal, the supreme court said: 

"The verdict in the action for negligence must 
be set aside. The evidence tended to show that 
the defendant was employed by Morrill (the 
father). Having undertaken for compensation to 
be paid by another, to examine the plaintiff, and 
to report whether he was diseased, the defendant 
was bound to have the ordinary skill and learning 
of a physician, and to exercise ordinary diligence 
and care; and if he failed, and the plaintiff was 
injured because of his want of such skill and learn- 
ing or his want of such care, the defendant was 
answerable to him in damages. ... In our opin- 
ion, the fact that the purpose of the examination 
was information, and not medical treatment, is 
immaterial; and the breaking of the plaintiff's 
marriage engagement, in consequence of the wrong 
diagnosis, was not too remote a damage to sustain 



MALPRACTICE 45 

the action. Upon the evidence, it was for the jury 
to say whether the defendant used ordinary care, 
learning and diligence. ' ' 46 

Damages. — The damages which a patient may 
recover are those growing out of the injury result- 
ing from the negligence, but not for any loss sus- 
tained by reason of the original disease or 
condition. He may show his pecuniary loss direct 
or indirect, impaired earning capacity, loss of time 
and its value, actual expenses incurred and pain 
and suffering, even up to the time of trial, any 
disfigurement of person resulting from the mal- 
practice, permanency of the injury resulting there- 
from, and the station and condition in life of the 
patient, mental worry, anxiety, discomfort, morti- 
fication and chagrin, by reason of the injury from 
the malpractice. 47 

Burden of Proof. — Questions which are suscep- 
tible of exact demonstration or absolute deter- 
mination, are not often the subject of litigation. 48 

Preponderance oe Evidence. — A preponderance 
of the evidence is all that is required of the plain- 
tiff in an action for malpractice. It is not neces- 
sary to prove the negligence of the practitioner 
beyond a reasonable doubt, nor by evidence suffi- 
cient to establish a clear conviction thereof in the 
minds of the jury. 49 



46 Harriott v. Plimpton, 166 Mass., 585. 

47 Chamberlain v. Porter, 9 Minn., 244; Tifft v. Wilcox, 6 Kan., 46; 
Cody v. Weins, 1 Mont., 424; Coombs v. King, 107 Me., 376, 380. 

48 Boucher v. Larochelle, 74 N. H., 433. 

49 Hoener v. Koch, 84 111., 408. 



46 DENTAL JURISPRUDENCE 

Excluding all Probable Causes. — It is not 
necessary to exclude every possible cause for the 
injury, except the negligence of the practitioner, 
it being sufficient to show that the wrongful treat- 
ment was the probable cause. The jury is not 
permitted to determine by mere conjecture be- 
tween two equally probable causes of the injury 
complained of, for only one of which the practi- 
tioner is responsible. 50 But the patient makes out 
his case under such circumstances, when he has 
shown that it is more probable that the cause for 
which the practitioner was responsible is the one 
that was the proximate cause of the untoward re- 
sults. 01 

Excusing Cause Must Be Conceded or Proved. 
— The rule that the jury cannot be permitted 
to determine by guess or mere conjecture be- 
tween two equally probable causes of the injury, 
for only one of which the practitioner is respon- 
sible, has no application unless the existence of a 
sufficient cause or causes for the injury, aside from 
the negligence charged, is conceded or conclusively 
proved. 52 

Infection Following Treatment. — Proof of an 
infection following treatment or operation does 
not discharge the burden resting upon the patient 
to establish liability of the practitioner, but he 
must introduce at least some evidence tending to 



50 Deschennes v. Concord R. Co., 69 N. H., 285. 

51 Boucher v. Larochelle, 74 N. H., 433; 15 L. R. A., 416. 

52 Boucher v. Larochelle, 74 N. H., 433. 



MALPBACTICE 47 

show that the practitioner was to blame and that 
it is at least probable that the untoward result 
was due to the improper conduct of the latter, 
and might not have happened but for such con- 
duct. 53 

Anesthetic. — (1) Failure to Administer. — Fail- 
ure or refusal to administer an anesthetic is 
not ground for an action for malpractice. 54 (2) 
Negligence or Other Cause. — Where the death 
of a patient might have been caused by the im- 
proper administration of an anesthetic by the 
practitioner, or calcareous degeneration of the 
heart, the practitioner is not liable unless it is 
made to appear from all the evidence that the 
death resulted either wholly, or in part, from the 
improper use or administration of the anes- 
thetic. 55 

Mistake in Diagnosis. — A mere mistake in diag- 
nosis, not accompanied by improper treatment for 
the real trouble, will not render the practitioner 
liable. 56 

Partners. — Partners in the actual practice of a 
profession are liable for the independent malprac- 
tice of either. 57 

Independent Acts. — One practitioner is not li- 
able for an injury inflicted by another, if not part- 



53 Ewing v. Goode, 78 Fed., 443. 

54 Dye v. Corbkt, 59 W. Va., 266. 
55Yaggle v. Allen, 48 N. Y. Supp., 827. 
56 Red Cross v. Green, 126 111. App., 214. 

57Hyrne v. Erwin, 23 S. C, 226; Whittaker v. Collins, 34 Minn., 
99; Hess v. Lowrey, 122 Ind., 225. 



48 DENTAL JURISPRUDENCE 

ners, unless they acted in concert or cooperation. 
Where their acts are entirely independent, sepa- 
rate and distinct as to aid, concert, cooperation 
and advice, there can be no joint liability and each 
will be liable only to the extent of his own wrong. 58 

Matron, — Assistant, — Apprentice. — A practi- 
tioner is liable to his patient for damages resulting 
from the negligence of his attendant or apprentice 
whom he permits to assist him in his work. 59 The 
assistant is also liable for his own negligence. 60 

Death from Malpractice. — Common Law. — At 
common law no action lies for damages caused by 
the death of a human being, by the wrongful or 
negligent act of another, in favor of the heirs, 
distributees or personal representatives of the de- 
cedent. 01 

Statutes. — In 1846 the British Parliament 
passed a statute familiarly known as Lord Camp- 
bell's Act, in words inter alia as follows: "That 
whensoever the death of a person shall be caused 
by wrongful act, neglect or default, and the act, 
neglect or default is such as would (if death had 
not ensued) have entitled the party injured to 
maintain an action and recover damages in respect 
thereto, then and in every such case, the person 
who would have been liable if death had not en- 



58 Teazel v. Alexander, 58 111., 254, 262; Barnes v. Means, 82 III., 
379. 

59 Hancke v. Hooper, 7 C. & P., 81 ; Chicago R. Co. v. Flexman, 
103 HI., 546. 

60 Reed v. Patterson, 91 111., 288, 297. 
ei Holton v. Daly, 106 111., 131, 136. 



MALPEACTICE 49 

sued, shall be liable to an action for damages, not- 
withstanding the death of the person injured and, 
although the death shall have been caused under 
such circumstances as amount, in law, to a felony. ' ' 

The act then provides that the action shall be 
brought for the benefit of the wife, husband, par- 
ent and child of the deceased in the name of the 
personal representative of the deceased. This 
statute has been enacted, with slight modifications 
and additions, in all the states and wherever such 
statute is in force a practitioner is liable for all 
damages sustained by the beneficiaries, in case the 
death of his patient results from his malpractice. 

Damages. — In these cases, where the benefi- 
ciaries are lineal kindred of the deceased, the 
damages which are recoverable are usually limited 
to the pecuniary loss sustained by such bene- 
ficiaries. 62 

Criminal Liability. — In case of gross negligence 
of a practitioner, resulting in the death of his pa- 
tient, he may be guilty of manslaughter. In order 
to sustain the action, gross incompetency or reck- 
less inattention or indifference must be shown. 
An inadvertent mistake, a mere error of judg- 
ment, an inability to master unforseen conditions 
will not be sufficient to predicate such liability. 63 
In case of criminal negligence, where death does 
not result, the practitioner will be guilty of a mis- 



62 Chicago, etc. v. Kelly, 182 111., 267. 
83 Com. v. Pierce, 138 Mass., 165. 



50 DENTAL, JURISPRUDENCE 

demeanor. 64 The practitioner's real intention is 
immaterial. He is presumed to intend the reason- 
able and probable consequences of his acts. 65 



04 State v. Reynolds, 42 Kan., 320; Hyatt v. Adams, 16 Mich., 198. 
65 See Stehr v. State, 92 Nebr., 755. Cf. contra, Com. v. Thompson, 
Mass., 134. 



CHAPTER IV 
EES IPSA LOQUITUR 

Presumption. — Definition. — A presumption is 
a hypothetical or inductive inference; something 
that is supposed to be true upon grounds of prob- 
ability. Presumption is an inference as to the ex- 
istence of a fact from the existence of some other 
fact or facts based upon previous experience of 
their connection, implying relation or association, 
or dictated by the policy of the law. Presump- 
tions are inferences in accordance with the com- 
mon experience of mankind and the established 
principles of logic. The strength of a presump- 
tion is dependent on the closeness or uniformity 
of association of the given fact or facts with the 
fact inferred. Thus, from the fact that the ground 
is wet, the presumption that it has rained will 
be strengthened according as the appearance of 
the ground, the extent of the wet area and other 
incidents exclude other causes for the condition. 

Presumptions of (1) Fact and (2) Law. — 
Writers speak of presumptions of fact and pre- 
sumptions of law, and divide the latter into dis- 
putable and indisputable presumptions. Pre- 
sumptions of law are only strong presumptions of 
fact. Where public policy or welfare are in- 

51 



52 DENTAL JURISPRUDENCE 

volved, these strong presumptions of fact are 
usually indisputable presumptions of law. Thus, 
rational men usually intend the reasonable and 
probable consequences of their conscious acts and, 
therefore, where the act is wrongful, the law in- 
disputably presumes such intent. A party will 
not be permitted to show that he really intended 
otherwise. An act is inevitably characterized by 
its consequences, when reasonable and probable, 
regardless of the real intent of the actor. In this 
connection we are interested only in certain pre- 
sumptions of fact in which no questions of the 
policy of the law are involved. They are only 
the application of the principles of logic to the 
ascertainment of facts which are the subject of in- 
quiry in judicial tribunals. 

The Maxim. — Res ipsa loquitur is a well recog- 
nized principle of the law of negligence. Broadly 
stated, it means the thing speaks for itself. It is a 
departure from the harshness of the common law, 
in that it shifts the burden of explanation from the 
party complaining to the party who naturally is in 
the best position to know the facts. The party 
against whom it operates must owe the injured 
party some general or special duty of protection 
or care, and that duty must have been violated. 
The fact must be such as, in the absence of ex- 
planation, naturally raises an inference of negli- 
gence on the part of some one, in which event the 
party owing the duty is charged with the burden 



RES IPSA LOQUITUR 53 

of showing that the occurrence was without his 
fault. It has been said that this phrase is often 
used in actions for injury by negligence when no 
proof of negligence is required beyond the oc- 
currence itself, which is such as necessarily to in- 
volve negligence. 1 

Application of the Maxim. — The doctrine was 
first applied to a case where a traveler on a public 
highway, while passing in front of a building, ad- 
joining the same, was injured by a barrel roll- 
ing out of a second-story door. Barrels, when 
properly placed, do not, of their own volition, 
change their position and, as the owner of the 
property adjoining the highway owed a person, 
rightfully using the same, the special duty of so 
using his property as not to injure the other, the 
court said that the burden of explaining the cir- 
cumstances under which the barrel fell, should be 
upon the owner of the property, as he was in the 
best position to know the circumstances leading 
up to the accident and injury. 2 As stated by one 
authority, the occurrence itself is evidence of neg- 
ligence. 3 The doctrine has also been applied to a 
case where a pedestrian on a sidewalk in a city 
was injured by a hammer falling from a swinging 
scaffold which was being used by workmen in front 
of the building. 4 The inference would not have 



1 Bouvier Law Dictionary. 

2 Byrne v. Boadle, 2 H. & 0., 722. 

3 Cunningham v. Dady, 191 N. Y., 152, 155; Ennis v. Gray, 87 
Hun. (N. Y.) 355, 361. 

4 Hunt v. Hoyt, 20 111., 544. 



54 DENTAL JUKISPRTJDENCE 

arisen in the original case if the evidence had left 
it uncertain from which of two doors, on different 
premises, under different control and ownership, 
the barrel fell. If, from the evidence, the hammer 
might have fallen indifferently, either from a scaf- 
fold under the control of A, or from a scaffold 
under the control of B, there can be no presump- 
tion that either A or B specifically was negligent. 
There must be at least a preponderance of the evi- 
dence that it came from one rather than the other. 

Burning a patient by X-ray is prima facie evi- 
dence of negligence. 5 

Sponge Cases. — This doctrine is illustrated in 
the case where absorbent gauze or sponges, or 
other foreign bodies, are left in the abdominal 
cavity after an operation. The presence of the 
intruder imjDels the unbiased mind to the infer- 
ence that the surgeon in charge was negligent 
and, because of that inference, the law casts on 
him the burden of showing that he was without 
fault. Of all persons, he ought to know why the 
foreign substance was left there. The broad equi- 
ties of the case demand that he be called upon to 
explain the occurrence and show, if he can, that 
he did all that could be done under the circum- 
stances to find and remove all foreign objects. 
Neither will an explanation that merely shifts the 
blame on others suffice. In the language of one 
of our courts — 



6 Shockley v. Tucker, 127 la., 456. 



RES IPSA LOQUITUR 55 

"Why was there left in the parts a foreign 
substance which the operating surgeon should 
have removed? It was for him to acquit himself 
of negligence with respect to it. The sponge es- 
caped his observation. Why? Was it so hidden 
and concealed that reasonable care on his part 
would not have disclosed it, or were conditions 
such that, in his professional judgment, further 
exploration by him for sponges would have en- 
dangered the safety of the patient? In a word, 
did he do all that reasonable care and skill would 
require? Except as one or the other of these 
questions can be answered affirmatively, from the 
evidence, the law will presume to the contrary and 
attribute the unfortunate consequences to his con- 
tributing negligence. Neither does the defendant, 
nor a single witness in his behalf, undertake to give 
any explanation of the fact that a sponge, which 
the defendant should have removed, was allowed 
to remain, except to say that the nurses failed to 
keep accurate count. From all that appears in the 
case, the retained sponge might readily have been 
discovered by the surgeon, and reasonable pru- 
dence and care on his part would have avoided 
the accident. If this were so, clearly his negli- 
gence contributed with that of the nurses and re- 
sponsibility therefor, in law, attached. ' ' 6 

Dental Cases. — Leaving part of a brooch in a 



6 Davis v. Kerr, 239 Pa. St., 351. See Palmer v. Humiston, 87 Ohio 
St., 401; Gillett v. Tucker, 67 O. St., 106. 



56 DENTAL JURISPRUDENCE 

tooth and closing up the cavity, should trouble 
afterwards result therefrom, would cast upon the 
operator the burden of showing that he was with- 
out fault in the premises. The presence of the 
broken end of the brooch requires an explanation 
from the person responsible for its presence, and 
a failure in this respect rightfully fixes his re- 
sponsibility. 7 A complete fracture of the sub- 
maxillary, while extracting a tooth, is of such rare 
occurrence, where proper care is exercised, as to 
raise a presumption of negligence on the part of 
the extractor, and the law should impose upon 
him the burden of showing that he exercised due 
and reasonable care and skill under the circum- 
stances. 

Others Involved.— Where the evidence leaves it 
uncertain, whether the foreign body was left in the 
cavity by the operating surgeon at the time of clos- 
ing the incision from the original operation, or 
was put in afterwards by others, independent of 
the operator, in the course of drainage, the doc- 
trine would not apply. 8 In the case last cited 
there was evidence tending to show that the sur- 
geon should have discovered the gauze during his 
course of treatment after the operation and before 
the termination of the relation. 

Infection. — Ordinarily the sequence of an aggra- 
vated condition, does not raise any presumption 



7 Van Skike v. Potter, 53 Neb., 28. 

8 Harris v. Fall, 177 Fed., 79; 27 L. R. A., 1174. 



KES IPSA LOQUITUB 57 

of improper treatment. Where a condition can 
be explained by either of several causes, its pres- 
ence proves neither. Thus, the presence of infec- 
tion following dental treatment does not, of itself, 
prove that the dentist was at fault, because the 
trouble may have been introduced by other means, 
either before or after the services. 9 Evidence 
must be produced to connect the treatment with 
the untoward result. Proof that the dentist had 
previously treated a patient similarly afflicted and 
neglected to disinfect his hands and instruments 
before undertaking the treatment complained of, 
might be sufficient to cast the blame upon him. 
However, we are now discussing presumptions, 
not the weight of evidence. 

Leaving a tooth go down the windpipe of a pa- 
tient who is under the influence of an anesthetic 
raises a presumption of negligence on the part of 
the operating dentist and casts upon him the bur- 
den of showing that the incident occurred without 
his fault. 10 



9 Ewing v. Goode, 78 Fed., 442. 
lOKeily v. Colton, 1 City Ct. (N. Y.) 
Cal. App., 50. 



CHAPTER V 

DENTITION 

Development of the Teeth.— An examination of 
the teeth of a child will give a reasonably accurate 
idea of its age. The two lower middle incisors 
usually appear before the child is seven months of 
age. The four upper incisors usually appear at 
about the age of nine months and almost invariably 
before eleven months. At the age of twelve 
months the four lower incisors and the four an- 
terior molars have appeared. The four canine 
teeth usually appear when the child is about eight- 
een months of age and are seldom ever delayed 
beyond twenty-one months. The entire tempo- 
rary set is usually erupted before the child attains 
the age of thirty months. According to Saunders, 
before the appearance of the permanent teeth and 
the loss of the temporary set, the child's jaws 
contain forty-eight teeth, twenty temporary fully 
developed and twenty-eight permanent in the proc- 
ess of development. The presence of forty-eight 
teeth in the alveoli of the jaws of a skeleton would 
fix the age at between six and seven years. The 
permanent teeth number thirty-two and appear in 
the following order : 

58 



DENTITION 59 

1. The 4 anterior molars, at the age of about 
six to seven years; 

2. The 4 middle incisors, two in the upper and 
two in the lower, at the age of seven to eight years ; 

3. The 4 lateral incisors, at the age of eight to 
nine years; 

4. The 4 biscuspids, at the age of about ten 
years ; 

5. The 4 pre-molars, at eleven to fifteen years ; 

6. The 4 canines, at the age of about eleven to 
thirteen years; 

7. The 4 second molars, between the ages of 
twelve and seventeen years ; 

8. The third molars are exceedingly irregular 
in their eruption but may be expected about the 
21st year, though they frequently delay many 
years thereafter. 

At seven years of age there may be 4 permanent 
teeth, namely, 4 first molars; at nine there will 
generally be 12, namely, 8 incisors and 4 first 
molars ; at thirteen there will be 20 to 24, namely, 
8 incisors, 4 canines, 4 bicuspids, 4 first molars, 
and probably 4 pre-molars. 

In examining 1,046 children, Mr. Saunders 
found that out of 708, known to be nine years of 
age, 389 had the full development of teeth for 
that age. In counting, he considers that where 
the teeth on one side are fully developed those of 
the other side should be counted also, and, with 
this correction, 530 came up to the standard. Of 



60 DENTAL JURISPRUDENCE 

the remainder, none would have varied more than 
a year from the standard, and the variation was 
invariably by deficiency. Of 338 children of thir- 
teen years of age, no less than 294 might, from 
their teeth, have been pronounced to be of that 
age. Thirty-six of the remainder would have been 
judged to be in their 13th year, and eight at or 
about the completion of the 12th year. 

Identification by Means of the Teeth. — The teeth 
are among the last parts of the body to decompose, 
and, therefore, since no two mouths are exactly 
alike in all respects, the teeth and jaws furnish 
good and, sometimes, indisputable means of iden- 
tifying a skeleton or a corpse. Criminal reports 
abound in instances in which the oral organs were 
important factors in determining the identity of 
a person or of a body. Therefore, it is advisable 
that, in case of the discovery of a corpse or skele- 
ton whose identity should be determined, and 
where the cause of death may later become a sub- 
ject of legal inquiry, a most minute investigation 
of the mouth should be made and a written memo- 
randum taken, at the time, of all observations, and 
particularly a cast of the mouth ought to be taken, 
if practical. Cases of doubtful identity have fre- 
quently been settled by casts of the mouth taken 
before death, by dentists, and such cases may arise 
at any time. In this connection, many questions, 
some intricate and speculative, may arise relative 
to the facts observed, and the investigation should 



DENTITION 61 

be made with a view of furnishing satisfactory 
data for an opinion on any subject which may 
reasonably be anticipated. Whether teeth which 
are wanting in a corpse or skeleton were lost be- 
fore or after death; if before, then how long be- 
fore; the cause of a certain condition observed, 
or whether such condition could have been pro- 
duced by such and such means, or is the result of 
disease, or existed prior to death, or was caused 
after death, etc., etc., and numberless other ques- 
tions which should occur to the careful observer, 
should challenge the attention of the investigator. 



CHAPTER VI 
ANESTHETICS 

Definition. — Anesthesia means a loss of sensi- 
bility to external impressions; in a technical and 
restricted sense, a loss of the sense of touch. Fre- 
quently, however, it is a general term used to de- 
note all classes of insensibility. The agent which 
produces anesthesia is termed an anesthetic ; there- 
fore an anesthetic is any remedy used to relieve 
pain or other hyperesthetic condition of the sen- 
sory nerves. 

Kinds of Anesthetics. — There are two principal 
groups of anesthetics when classified according to 
the nature of their effects 

(1) Local, as affecting a restricted area or part 
of the body, and 

(2) General, as affecting the entire body. 

Cold is one of the most useful and generally em- 
ployed local anesthetics. This condition is now 
usually brought about by the use of ether or ethyl 
chloride, as a spray. Local anesthesia is fre- 
quently produced by the use of cocaine, eucaine, 
holocaine and orthoform. Some of the more com- 
mon general anesthetics are ether, chloroform, 
nitrous oxide, antipyrine, acetanilid, etc. 

62 



ANESTHETICS 63 

Chloroform should not be given where there is 
weakened heart action from disease. Where there 
is chronic or severe kidney trouble an anesthetic 
should not be given unless absolutely necessary. 

Responsibility in Administering Anesthetics. — 
In administering an anesthetic agent for the pur- 
pose of his professional duties a practitioner is 
bound, in law, to look only to natural, ordinary, 
usual and probable consequences. Conversely, he 
is not answerable in malpractice for failing to an- 
ticipate results arising from a peculiar condition 
or temperament of his patient, of which, in the ex- 
ercise of reasonable skill and care, under the cir- 
cumstances he had no knowledge. "Where the 
administration of an anesthetic is necessary or ad- 
visable for professional purposes, and objection to 
its administration not appearing or being discover- 
able by careful and skillful diagnosis, he is not 
liable for resulting damages unless at least two 
facts coexist, namely : 

1. That he was guilty of negligence in reference 
to the administration of the anesthetic, and 

2. That the injury of which the patient com- 
plains was the result of this negligence in the use 
of the anesthetic. 

The negligence in the administration of the an- 
esthetic may have consisted in administering it 
without sufficient preliminary examination, or in 
administering an unfit and unsuitable drug, or in 



64 DENTAL. JURISPRUDENCE 

the unskillful or careless manner of administra- 
tion, or in the excessive amount given. 1 

Extreme Responsibility in Fact. — In dealing 
with anesthetics, the practitioner must know that 
he is using instrumentalities which are dangerous 
and deadly, and his care must be in proportion to 
the risk involved to his patient. His responsi- 
bility begins with the examination preceding the 
administration of the drug and carelessness re- 
sulting in the determination to use the same when 
clearly it should not have been given will make him 
liable in malpractice for resulting injuries, and, 
possibly, for manslaughter, where the conse- 
quences are death. He cannot trifle with the 
health or life of his patient and not shoulder the 
responsibility. 2 

Effects of Anesthetic. — In cases of anesthesia 
from the administration of a general anesthetic 
the following propositions of fact may be said to 
be established by the consensus of medical expe- 
rience and opinion : 

1. Consciousness of external impressions is im- 
paired in the early stages. 

2. This impairment is progressive. 

3. The impressions which reach the mind dur- 
ing the progress of anesthesia are distorted and 
sometimes perverted. 

4. Consciousness of external impressions is en- 
tirely lost in the final stage. 



1 Bogle v. "Winslow, 5 Phila., 136, 

2 State v. Baldwin, 3/5 Kan., 1. 



ANESTHETICS 



65 



5. Voluntary muscular movement is not lost un- 
til the final stage. 

6. Emotions of an erotic character are often ex- 
cited. 

7. Memory of events occurring during the prog- 
ress of anesthesia is distorted and sometimes 
wholly unreal. 

8. Dreams are sometimes experienced. 

9. The impressions left by these dreams remain 
fixed in the mind with all the vividness of real 
events. 3 

Value of Testimony. — The fact that, during the 
last stages of anesthesia, the mind is entirely lost 
to outward impressions, and the entire sensory 
nervous system has suspended its functions, 
should be sufficient to stamp with great uncer- 
tainty the statement of a person as to what oc- 
curred to him while under the general influence of 
an anesthetic, when the statement is based upon 
his alleged sensations at the time ; therefore, when 
to actual mental suspension there is added possible 
hallucinations and self-deception of a character 
similar to the alleged experience, the testimony 
has but few elements entitling it to credit. Mani- 
festly, but little reliance can be placed upon sup- 
posed impressions alleged to have been received 
during the time. 

Rape. — Definition. — Eape is the carnal knowl- 
edge of a female forcibly and against her will. 



> Wharton & Stille: Med. Jurisp. 



66 DENTAL JURISPRUDENCE 

This is regarded as a most brutal crime and the 
penalty in all civilized communities is justly se- 
vere. On the high seas and in all places within 
the exclusive jurisdiction of the United States, it 
is punishable by death. 

The Force. — The kind and degree of force used 
is not material, if it be sufficient to overcome re- 
sistance. It may be physical violence, fraud, in- 
timidation by threats and through fear of personal 
injury or public scandal, the administration of 
drugs or gases producing anesthesia or exciting 
sexual passions, taking advantage of natural sleep, 
hypnotic influences, or any of the countless arti- 
ficial means whereby a female's power or desire 
to resist may be overcome. The gist of the of- 
fense is the having sexual intercourse without her 
consent, or at a time when, because of a natural 
or artificial, permanent or transient, mental con- 
dition, she was incapable, in fact or in law, of 
giving consent. 

Purpose of Anesthetization. — Since deflora- 
tion of a female under the influence of an anesthet- 
ic is rape, and the gravamen of this offense is the 
violation of the person, the intent with which or 
the person by whom the anesthesia is induced 
is unimportant. Whether the stupefaction was 
brought about at her request to relieve pain of a 
dental operation, or without her consent to excite 
her sexual passions, leading to voluntary submis- 



ANESTHETICS 67 

sion, or to overcome her power of resistance to the 
assault, the offense is rape. 

Ujstchastity of Female. — The previous unchas- 
tity of the woman is immaterial, except as it affects 
her credibility, where the act is denied, or bears 
upon the presumption of consent, where the act is 
admitted. 4 

Right to Administer. — Instruction on the sub- 
ject of anesthetics and in the methods of adminis- 
tering them is included in the curriculum of every 
reputable school of dentistry. The right to ad- 
minister an anesthetic in a proper case is implied 
in a dental degree. Though the necessity for re- 
sort to the drug is not the same as in general sur- 
gery, the use of anesthesia is recognized as a 
distinct equipment of the dental profession, and 
as essential to the successful performance of his 
work in certain cases. If there is any reasonable 
justification in fact for resorting to the expedient, 
considering the nature of the operation and the 
condition of the patient, and the patient desires or 
consents to the same, the practitioner may employ 
it in connection with his professional services, 
and he will not be answerable for untoward results 
merely by reason of the fact of having admin- 
istered the drug. The law indulges no presump- 
tions, either of ignorance or skill. If the plaintiff 
alleges ignorance in the matter of administering 
the anesthetic, as the basis of his right of action, 



4 Carney v. State, 118 Ind., 525; Maxey v. State, 



68 DENTAL JURISPRUDENCE 

he must prove his allegation or lose his case. If 
he offers no proof of ignorance, there is nothing 
on which to found his charge, since the law does 
not presume that the practitioner was ignorant. 
If the patient introduces evidence sustaining his 
allegation, the practitioner must show that the an- 
esthetic administered, and the method of adminis- 
tration were in accordance with the teaching and 
practice of the profession. In practice a dentist 
is not likely to be charged generally with being 
ignorant. Such an allegation might be extremely 
difficult to prove and, even if proven would avail 
the patient nothing unless he also proved that, by 
reason of that ignorance, he was injured. The 
want of skill must have been manifested in the par- 
ticular case. Ignorance must be translated into 
action or non-action before the patient can com- 
plain. The conduct, not the ignorance, is the real 
ground of complaint. The practitioner may be 
generally ignorant and unskilled but may do right 
by chance, accident or mistake. Why should the 
patient complain ? He may be ever so skilled and 
do wrong through negligence, and thereby injure 
his patient. Why should the patient not com- 
plain? 



CHAPTEE VII 
CONSENT TO OPERATION 

Consent Necessary. — Consent of the patient is 
indispensable to the justification of a dental or 
surgical operation. It is an absolute right of 
the patient to determine what he wants done, and 
his will must prevail. 

Motive. — An unauthorized operation is a tres- 
pass regardless of the motive which prompted the 
operator. The basis of the liability is the wrongful 
invasion of the person, and proper motive is 
neither justification nor excuse for the assault. 
The dentist who extracts a tooth without the con- 
sent of his patient is in the same category tech- 
nically as the bully who removes it with a blow. 
The only relation of motive to the offense is its 
effect on the damages to be recovered. Where 
the motive was good the law allows only compen- 
satory damages, but never less than nominal, while 
in a case involving evil motive, the injured party 
may recover punitive damages in addition to his 
actual loss. 

Implied Consent. — The presence of a patient in 
the chair of a dentist presupposes a desire to have 
some service rendered, but it does not indicate a 



70 dental; jurisprudence 

desire to have any particular operation performed 
or course of treatment undertaken ; but knowingly 
submitting to a particular operation or course of 
treatment, by an adult, implies consent thereto. 
Where a patient, without objection, voluntarily 
submits to an operation, or a course of treatment, 
his specific consent will be presumed as such con- 
duct is prima facie evidence of his consenting 
mind. 1 

Scope of Consent.— It is for the practitioner to 
examine, consider and recommend; it is for the 
patient to determine. In cases of the extraction 
of teeth and the substitution of plates or bridges, 
the wishes of the patient must be observed. The 
operation should be confined to the specific serv- 
ices agreed upon. Consent to extract one tooth 
is not authority to eliminate two or more, and con- 
sent to the removal of a particular denture does 
not justify the extraction of a different member, 
even though the latter more emphatically requires 
removal. It is the patient's, not the dentist's 
mouth that is being operated upon, and the former 
is the party for whom the services are being ren- 
dered. His final determination must be respected 
even though it be clearly wrong. The only alter- 
native to obeying that conclusion, when expressed, 
is to refuse to operate at all and discharge the pa- 
tient. Usually the patient will accept and follow 
the advice of his dentist, given in good faith after 



i State v. Housekeeper, 70 Md., 162. 



CONSENT TO OPERATION 71 

proper diagnosis and consideration; but when he 
will not do so his wishes must control in all opera- 
tions undertaken. Merely because the practi- 
tioner's judgment ought to be better than the judg- 
ment of his patient is no sufficient reason why the 
judgment of the former should prevail. This ap- 
plies with special force where the services result 
in extensive changes in the oral cavity. However, 
a dentist is not always justified in doing what his 
patient asks him to do. A party suffering a tooth- 
ache may not be in a mental attitude or physical 
condition to determine what is best. His desire 
is to be relieved of pain by the shortest route and, 
therefore, would naturally consider a permanent 
cure the most desirable consummation. Unless, 
on diagnosis, extraction is indicated, the operator 
should refuse to remove the offending member. 
By a simple treatment he may be able to accom- 
plish all the sufferer desires, and the tooth may 
thus be saved for future usefulness. Further- 
more, he will not be liable for malpractice for the 
mere fact of relieving the pain by treatment 
rather than by extraction, especially if he advises 
his patient that he has not removed the offender. 
However, having in good faith given proper ad- 
vice, which the patient refuses to adopt, the den- 
tist will not be liable in damages for doing, in a 
proper manner, what he was requested to do, 
provided, always, the patient was in law compe- 
tent at the time to determine for himself. 



72 DENTAL JURISPRUDENCE 

More Than One Method.— Where either of two 
or more courses may, with equal propriety, be pur- 
sued, the practitioner should counsel and recom- 
mend to the patient what should be done, but 
should finally adopt the method selected by the pa- 
tient. If the latter refers the question back to the 
operator he should follow the course which in his 
best judgment is preferable, under all the circum- 
stances, and will be liable in damages only in case 
of negligence, even though another practitioner 
would have recommended a different course. 

Emergency. — The surgeon is sometimes con- 
fronted with an emergency requiring immediate 
operation, under circumstances where express con- 
sent is impossible, as in case where a party is un- 
conscious from an injury, where no one is present 
who, in law, might be presumed to have authority 
to speak for him. In such a case the consent of 
the patient, if an adult, or of the parent, if the 
patient is a minor, is presumed. Here the con- 
sent, given only to the performance of the usual 
and ordinary operation to relieve the particular 
injury and meet the emergency, would not include 
an operation for some chronic ailment with which 
the injured party was suffering at the time, unless 
the same were practically necessary to the skill- 
ful performance of or recovery from the traumatic 
operation. Thus, an injury necessitating entering 
the abdominal cavity for proper treatment and 
relief would excuse the operator for so doing and, 



CONSENT TO OPERATION 73 

in case the patient is unconscious and the neces- 
sity of operation imperative, consent therefor will 
be presumed, ex necessitate; but the circumstances 
would not carry with it authority to remove a dis- 
eased ovary, an inflamed appendix, a calcified gall 
bladder, a tumor or other chronic affliction, unless 
such operation were reasonably — perhaps abso- 
lutely — necessary to a successful recovery from 
the emergent operation. From the very nature of 
the professional duty, such emergency cases must 
be of rare occurrence in dentistry. 

Whose Consent. — In case of an adult, not under 
mental disability, his consent alone is sufficient to 
justify a dentist in performing any reasonable 
operation within the scope of his profession and 
employment. Consent of the parent is usually 
necessary to authorize work of a radical nature 
on a minor. A person standing in the relation of 
a parent would be qualified to authorize the serv- 
ices and relieve the dentist of a charge of trespass 
for performing the work. When the minor re- 
sides with his parents, an adult sister could not be 
said to stand in loco parentis and, therefore, her 
consent would not be sufficient authority. 2 

Extent of Consent. — Consent to an operation ne- 
cessitating a general anesthetic does not extend 
beyond the reasonable limits of the specific relief 
stipulated or contemplated by the parties at the 
time the patient goes under the influence of the 



2Rishworth v. Moss, Tex., ; 159 S. W., 122. 



74 DENTAL JURISPRUDENCE 

drug. Having permission to perform a given op- 
eration does not imply consent to an entirely dif- 
ferent and more extensive invasion of the body. 
In fact, under the doctrine that the specification 
of one is the exclusion of others, the right to per- 
form a different operation would apparently be 
specifically prohibited. The surgeon or dentist is 
bound to exercise the utmost good faith and fair 
dealing towards his patient in this respect and any 
material deception will convert his efforts into an 
assault justifying punitive damages, regardless 
of his real motives. 3 The mere employment of a 
dentist or surgeon does not give him implied au- 
thority to do whatever in his discretion he may 
deem necessary or expedient without consulting 
the wishes of his patient. Great though his res- 
ponsibilities and obligations are, and necessarily 
having an important bearing upon the implied au- 
thority with which he is clothed, they do not con- 
fer upon him unlimited, arbitrary and absolute 
power to treat his patient in accordance with his 
own judgment without reference to the rights or 
wishes of the latter. In the case of a surgical 
operation, it is advisable to get previous authority 
to perform such operation as, in the judgment of 
the operator, in the progress of the work, the wel- 
fare and best interests of the patient require. In 
the absence of such general and unlimited au- 
thority, however, it must be conceded that the wel- 



Pratt v. Davis, 224 111., 300. 



CONSENT TO OPERATION 75 

fare of the patient demands that the operator shall 
have implied power to deal with unforeseen inci- 
dents and unexpected conditions as they arise in 
the progress of the stipulated operation, in such 
manner as he shall consider proper, and a reason- 
able departure from the exact purpose and scope 
of the original operation, for the benefit of the 
patient, ought not, and as a matter of law does not, 
make the operator liable for malpractice. Thus, 
a surgeon diagnoses a patient's trouble as a uter- 
ine tumor and is engaged to remove it. On enter- 
ing the cavity he finds the tumor as diagnosed, 
together with another smaller tumor, both of 
which can be readily, successfully and safely re- 
moved in one operation. The patient's welfare 
and the general, if not the specific, purpose of his 
employment demand that he remove both without 
waiting to get the consent of his patient therefor. 
Eemoving a diseased appendix in the course of an 
operation for gall stones ought to be considered 
authorized as within the purview of the primary 
undertaking. 

Departure from Agreed Operation.— The opera- 
tor, however, cannot materially depart from the 
scope and purpose of the operation originally con- 
templated without the consent, express or implied, 
of the patient. Whether there was a material de- 
parture in this respect is usually a, question of fact 
for the jury, not of law for the court. The rule 
announced in Mohr v. Williams, 95 Minn., 261, 



76 DENTAL JURISPRUDENCE 

must be construed as announcing the doctrine that 
the question of what constitutes an improper de- 
parture from the agreed operation, is one of fact 
for the jury and, as so construed, it is a correct 
statement of the law. In this case the surgeon 
examined both ears of the patient and advised an 
operation on the right ear. Later, the patient sub- 
mitted to an operation for that purpose, and after 
she was under a general anesthetic and the sur- 
geon had examined the ear specified, he found that 
such operation was not imperative at the time 
but, upon examination of the left ear, found it in 
such condition as to demand immediate attention. 
Without waiting for the patient to recover from 
the anesthetic and getting her consent he aban- 
doned the operation on the right ear and operated 
on the left alone. The opinion indicates that the 
operation was upon the middle ear and was made 
through the drum from the outside, thus neces- 
sitating an entirely different invasion of the body 
to that contemplated in the original undertaking. 
Later, the patient brought an action for assault 
and battery. She was successful before the jury 
and obtained a verdict for $14,322.50. The trial 
court granted a new trial on the ground that the 
verdict was excessive, from which order granting 
a new trial the plaintiff appealed. The defendant 
further moved for judgment dismissing the suit, 
notwithstanding the verdict, on the grounds (a) 



CONSENT TO OPERATION 77 

that the patient's consent was not necessary, (b) 
that the patient did in fact consent to the opera- 
tion performed, and (c) that the consent of the 
patient was implied, under the circumstances, but 
this motion was denied and the defendant ap- 
pealed. The operation was successfully and skill- 
fully performed and was of a generally beneficial 
nature to the patient. There was no bad faith 
shown on the part of the operator. This case 
appears to be quite generally misunderstood. The 
opinion shows a thorough consideration of the sub- 
ject by the court and is in perfect consonance with 
the rights of all parties concerned. It is impos- 
sible to lay down any strict rule for determining 
what constitutes an improper departure from the 
original understanding between patient and oper- 
ator, as each case must depend upon its own spe- 
cial facts. Hence, where the facts are disputed, 
the question must generally be one to be settled by 
a jury, as a question of fact. 

Prohibited Act. — In no event is the operator 
justified in performing an operation which the pa- 
tient has expressly forbidden. He may consider 
that the health and welfare of the patient de- 
mand immediate operation, but he has no right to 
disregard the prohibition of the patient. The ex- 
pressed wish of the latter is paramount to the 
discretion of the practitioner. In fact, when the 
former fixes a condition, the latter has no discre- 



78 DENTAL JURISPRUDENCE 

tion ; he must do as directed or quit the case. In 
a certain English case 4 which apparently did not 
go beyond the nisi prius court, a young lady con- 
sulted an eminent surgeon relative to some ovarian 
trouble. The latter advised an operation. Be- 
fore consenting the patient told him that if he 
found only one ovary diseased he should remove 
it, but if both were involved he must not remove 
either. To this express inhibition the surgeon 
claims to have replied: "You must leave that to 
me." The patient claims that she did not hear 
such remark and, of course, in that event, could 
not have acquiesced therein. Upon opening up 
the cavity both organs were found to be badly 
diseased and the surgeon removed them. The 
patient brought action for damages for operating 
in violation of instructions. There was evidence 
to the effect that her health and, possibly, her 
life required the excision of the organs. There 
was no claim of unskillfulness or carelessness. 
The court instructed the jury to find for the sur- 
geon; thus holding, as a matter of law, that the 
patient had consented, or that, having consented 
to an operation of the character in question, it 
was for the surgeon to determine to what extent 
he would go in invading her body. Such holding 
is clearly wrong, as the jury should have passed 
upon the question as to whether, under the cir- 
cumstances, the patient did in fact leave the en- 



4 Baty v. Cullingworth, decided in London in 1896. 



CONSENT TO OPERATION 79 

tire matter to the discretion of the surgeon. In 
view of her express prohibition, if she did not 
hear his alleged reply, and if she did not with- 
draw her instructions, he was a trespasser ab in- 
itio, whatever may have been his motives and re- 
gardless of what he thought her health and welfare 
required. The ovaries belonged to her, not to 
him ; whatever right he had in the premises he de- 
rived by contract with her and, under the circum- 
stances, the burden was on him to establish his 
right and authority. 

Presumptions from General Consent. — When a 
person consents generally to an operation for 
specific relief and, in pursuance thereof, takes a 
general anesthetic without giving any special in- 
structions to the operator, he impliedly gives the 
latter authority to do any act reasonably neces- 
sary to accomplish the general purpose of his spe- 
cific employment, or clearly incident thereto, and, 
in his discretion, to depart from the specific op- 
eration originally contemplated, so far as to give 
the patient the fullest measure of benefit, from 
his skill, judgment and observation, within the 
purview of the relief sought. Thus, in the Mohr 
case, if the general employment had been to re- 
lieve the patient of defective hearing, and had 
such relief been the specific purpose of the opera- 
tion agreed upon, the mere fact that the surgeon 
made a wrong operative diagnosis resulting in 
recommending an operation on the wrong ear (as- 



80 DENTAL JUKISPKUDENCE 

suming that the relative condition of the ears had 
not changed between the first examination and the 
time of the operation) should not have limited his 
authority to an operation on the ear mentioned, 
because the patient was entitled to have the bene- 
fit of his skill and best judgment at all times. 
Neither party should be bound by the mistake. 
On the other hand, if the relative conditions of the 
ears changed between the examination and the op- 
eration, the surgeon should have had the implied 
authority to deal with conditions as he found them 
at the time, keeping in view the general purpose 
of his employment, — to relieve defective hearing. 

Bennan v. Parsonett, N. J. L., (83 

Atl., 948), was an action for assault and battery 
brought against a surgeon by a patient. The 
plaintiff arranged with the defendant for an op- 
eration for a rupture on the left side. Such 
operation was advisable but not imperative. 
After the anesthetic had been administered, the 
surgeon discovered on the right side a hernia 
which was a serious menace to the patient, and 
of a character to cause his death should strangu- 
lation occur, and operated for the latter trouble 
without procuring the patient's consent. The 
trial court correctly stated the law, to the effect 
that the patient must be the final arbiter to de- 
cide whether or not he will take the chances of 
an operation, and that his consent, express or im- 
plied, must be given before a surgeon can law- 



CONSENT TO OPEEATION 81 

fully operate ; but the court held that the consent 
to operate for one hernia, under the circum- 
stances, was not, as a matter of law, an implied 
consent to operate for the other and left the ques- 
tion of consent to the jury, as one of fact. The 
jury found that the patient did not consent and 
rendered a verdict of one thousand dollars against 
the surgeon. On appeal the upper court osten- 
sibly rejected this rule as being unsuited to modern 
operations, held that under the circumstances 
consent was reasonably implied, and laid down 
the rule, in substance, that when a person has 
selected a surgeon to operate upon him, and has 
appointed no other person to represent him dur- 
ing the period of unconsciousness which consti- 
tutes a part of such operation, the law casts upon 
the operator the responsibility of so acting, in 
good faith, in the interest of his patient, within 
the reasonable scope of his employment and the 
general purpose of the relief sought, that the 
latter shall receive the fullest benefit of that pro- 
fessional judgment and skill to which he is legally 
entitled. The suggested fiction that the surgeon 
becomes the agent of the patient under an anes- 
thetic only complicates matters, since the same 
questions arise in determining his authority as 
agent, and must be answered on the same state 
of facts. This case, while ostensibly announcing 
a different rule to the one given in the Mohr case, 
in reality merely justifies the extension of the 



82 DENTAL JUKISPKTTDENCE 

field within which the court will consider that, as 
a matter of law, the patient by implication, con- 
sented to the operation as performed, but leaves 
the rule the same, namely, that, where the opera- 
tion performed was not the operation agreed 
upon, the question as to whether there was such 
a substantial departure from the scope and pur- 
pose of his employment as to negative the idea of 
consent, is a question of fact for the jury, to be 
determined from a consideration of all the cir- 
cumstances in the case, including the general pur- 
pose of the employment, the character of the op- 
eration specified and of the one actually per- 
formed, their relation to the relief sought, the 
exigency of the situation, the general welfare of 
the patient, the good faith and fair dealing of the 
operator. 

The Patient's Right as Affecting Operator's 
Duty. — The converse of the proposition may 
throw some light on the subject. The patient 
has certain rights in the premises. In fact his 
rights are the controlling factor in the situation. 
His welfare is the origin of the relation and gives 
character to the entire transaction. Would he 
have reasonable grounds for complaint, under the 
circumstances, if the operator had not acted in 
the manner he did and performed the operation in 
question? An affirmative answer to this question 
means that consent was implied. What did the 
patient have a right, under the law and the facts, 



CONSENT TO OPERATION 83 

to expect? If the answer is, the relief given, 
the consent was necessarily implied. A surgeon 
operates for a fibroid tumor and removes the 
same. During the operation he discovers a badly 
infected appendix, not detected by the operative 
diagnosis, ready to break and send its virus 
throughout the abdominal cavity at any moment, 
perhaps before the patient leaves the operating 
table. What are the patient's rights'? What is 
the operator's duty? The implied consent of the 
patient must be broader than the operator's duty, 
for there must be a field within which the latter 
may use his discretion. There can be no duty 
on the part of the one without an implication of 
consent in reference thereto on the part of the 
other. 

Terms of Contract for Operation. — The results 
of the cases not growing out of accidents and 
similar emergencies, may be summarized as fol- 
lows: 

1. Consent of the patient is necessary to the 
right to perform any operation. 

2. Consent may be express or implied. 

3. Express consent may be general or specific. 

4. Where the consent is general, with reference 
to some general relief desired, the operator is at 
liberty to do any act reasonably calculated to 
effectuate that general object and he is given a 
wide latitude of discretion. 

5. Where the consent is general, with reference 



84 DENTAL JURISPRUDENCE 

to some specific relief, the operator may do any- 
thing reasonably calculated to afford the specific 
relief contemplated, but the authority does not 
extend beyond the purview of said relief. 

6. Where the patient consents to a specific op- 
eration for the purpose of some general relief, 
the operator has implied authority to do anything 
reasonably incident or collateral to the specific 
operation, or reasonably necessary to the fullest 
measure of the general relief involved. 

7. Where the patient consents to a specified op- 
eration for the purpose of some specified relief, 
the operator is limited to the specified operation, 
and such collateral matters as may be reasonably 
necessary to bring about the specific relief con- 
templated. 

8. General consent to a specific operation im- 
pies consent to the performance of the same ac- 
cording to the professional discretion of the oper- 
ator. 

9. General consent to a specific operation im- 
plies consent to perform all incidental operations 
related to and reasonably growing out of the 
primary operation. 

10. General consent to operate for specific relief 
implies consent to the use of all the means reason- 
ably calculated to accomplish that purpose, under 
the doctrine that where an end is required the 
necessary means are implied. 

11. Where the operator acts without any au- 



CONSENT TO OPERATION 85 

thority whatever, he is a trespasser, liable for 
punitive damages, regardless of his motives and 
of the benefits to the patient. 

12. Most operations cannot be performed as 
you erect a house or construct a machine, accord- 
ing to plans and specifications, but the patient 
must necessarily confide in the operator to do 
what, in his judgment, the health and welfare of 
the patient may require, in view, not only of 
previously known conditions but also of situations, 
anticipated and unexpected, as they arise during 
the progress of the operation. 

13. Where the patient forbids specific things, 
his wishes must be respected, and a breach in this 
respect makes the operator a trespasser ab initio 
and liable for punitive damages. 

14. To the knowledge of the patient, it fre- 
quently occurs that complete diagnosis is not 
made until after the patient is under the influence 
of the anesthetic, in which event the patient must 
be presumed to consent to any operation not ex- 
pressly prohibited, but within the general pur- 
view of the employment, which the operator fi- 
nally concludes, in good faith, unbiased by selfish 
motives, the patient's condition demands. 

15. Where the operator has the permission of 
his patient, he will not be liable, except for mal- 
practice, whether his efforts are beneficial or in- 
jurious to his patient. 

16. The circumstances under which the ques- 



86 DENTAL, JURISPRUDENCE 

tion as to whether an operator exceeded his au- 
thority are so diversified and individually dis- 
tinctive, that the courts will not attempt to lay 
down any hard and fast rule to fix the line at 
which the patient's consent ends and the opera- 
tor's trespass begins. 

17. Where the law imposes a duty on the opera- 
tor to give the relief in question, the consent of 
the patient is implied, and even in cases where the 
situation is not so serious as to raise a legal duty, 
the determination of the operator to act, if in 
good faith and apparently for the welfare of the 
patient, ought to be final and bind the patient un- 
less clearly and manifestly wrong or expressly 
forbidden. 

Damages for Unauthorized Operation.— In de- 
termining the amount of damages for an opera- 
tion beyond the purpose and scope authorized, the 
jury should take into consideration the character 
of the injury inflicted, the good faith of the opera- 
tor, the reasonableness of what he did, in view of 
the general purpose of his employment, the na- 
ture and exigency of the malady which was the 
subject of the engagement and of the disorder 
actually treated, and the beneficial nature of the 
operation performed. 5 Even though the services 
were actually beneficial to the patient, still where 
there was no consent, he should recover nominal 



5 Mohr v. Williams, 95 Minn., 261. 



CONSENT TO OPERATION 87 

damages for the technical trespass, and the op- 
erator cannot recover a fee for his services in that 
behalf. 



CHAPTER VIII 
COMPENSATION 

History. — At common law, professional men 
could not sue and recover for services rendered, 
nor even contract beforehand for pay for such 
services. This grew out of a supposed analogy 
with the legal profession. The patient might pay 
the practitioner if he chose to do so, and it was 
always lawful for the latter to accept such re- 
muneration, but the question of pay was entirely 
within the discretion of the patient. The law on 
this subject has undergone a complete revolution 
and, at the present time, professional services 
stand upon the same footing, as to compensation, 
as all other services. 

Agreement as to Fee. — Where the charge is 
agreed upon, such agreement, if reasonable, will 
control, in the absence of fraud or undue influ- 
ence. 1 

No Agreement as to Fee. — One who, without 
previous agreement, knowingly accepts services 
from another is bound in law to render compensa- 
tion to the extent of the reasonable value thereof. 
The law presumes that he agreed to do so, and 
that such understanding was in the minds of both 



X Doyle v. Edwards, 15 S. D., 648 ; Burgoon v. Johnson, 194 Pa. St., 61. 
88 



COMPENSATION 



89 



parties at the time the work was done. It is based 
upon the broad principle that the law will re- 
quire a party to do what he apparently promised 
to do, or what he ought to do, regardless of his 
real undisclosed intention in the premises. In the 
absence of previous agreement, a dentist is en- 
titled in law to a reasonable compensation for his 
services and the medicine and materials furnished 
by him. The basis of the obligation to pay may 
be either (a) the benefit to the patient, or (b) the 
detriment to the practitioner, or (c) the two com- 
bined. 

Benefit to Patient. — Both in fact and in law the 
origin and foundation of the relation of patient and 
practitioner is a supposed benefit to be derived by 
the patient. Eliminate this idea from the minds of 
the people and the profession will cease. It is 
absurd, therefore, to suppose that the result of 
the treatment should in all cases be entirely ig- 
nored in questions of the reasonable value of the 
services. But, on the other hand, in the case of 
the physician, especially, it cannot always be de- 
termined beforehand whether he can be of any 
benefit to his patient; in fact, he may respond 
promptly to a call and, on his arrival, may find 
his patient dead. Having attempted to discharge 
his duty to his patient and, being prevented by 
no fault of his own, he is entitled to be reimbursed 
for his efforts made in good faith. It is a general 
law of service that so long as the servant does 



90 DENTAL JURISPRUDENCE 

his duty faithfully, promptly and properly, he is 
not concerned in the real value, to his master, of 
his efforts. The determination of that question 
is exclusively with the latter and, so long as he 
continues to accept the services, he must pay for 
them, regardless of their real value to him. 

Fault of Servant, — Benefit to Employer. — How- 
ever, if the value is affected by the fault of the 
servant in the performance of his duty, a different 
question arises. He did not do what he was em- 
ployed to do, but in reality departed therefrom, 
and is held responsible for results, and is, there- 
fore, entitled to compensation only as he bene- 
fited his employer. Suppose, in the last 
illustration, that the physician delayed unneces- 
sarily, and without reasonable cause or excuse, 
to respond to the call, a different and probably 
controlling element would be injected into the 
problem. By delay he breached the contract. 
He departed from the implied agreement. He 
was not employed for that purpose. If he did 
his patient no good, and if such result may have 
been due to his own fault, then he should not be 
entitled to any compensation. 

Proper Treatment. — A practitioner is employed 
to treat his patient properly, and a departure 
therefrom is a change of the employment. Where 
the fault of the practitioner is an element in the 
final result he can recover only the value to the 
patient of his services. If, by such test, they had 



COMPENSATION" 91 

no value, he can recover nothing, and, if the pa- 
tient was damaged thereby, the obligation may 
rest on the practitioner to respond therefor. 

Value of Services, a Question of Fact. — Where 
he has no previous understanding with the pa- 
tient, the amount to which the practitioner is en- 
titled, is a question of fact for the jury, and is said 
to be what the services were reasonably worth, 
under the circumstances. In determining the 
value of the services the jury should take into con- 
sideration the time consumed, the delicacy and 
difficulty of the operation, the usual and customary 
fees for the same or similar services in the lo- 
cality, and, sometimes, the success or failure of 
the efforts. 2 

Agreement is Not Necessary. — It is not essen- 
tial to a right of recovery that the value of the 
services be agreed upon beforehand and, in the 
absence of special agreement to that effect, suc- 
cess in treatment is not essential to a right of 
recovery, but, where the practitioner is guilty of 
a breach of duty, may be taken into consideration 
in determining the amount to which the practi- 
tioner is entitled, since the basis of the claim then 
becomes the benefit derived by the patient from 
the services, when the same is susceptible of dem- 
onstration. 3 



2 Adams v. Stevens, 26 Wend., 451; Smith v. Watson, 14 Vt., 332; 
Wheaton v. Johnson, 55 111. App., 53. 

3 Ely v. Wilbur, 49 N. J. L., 685 ; Gallaher v. Thompson, 1 Wright 
(Ohio) 466; Kanna v. McMullen, 1 Peake, 83; Hupe v. Phelps, 2 Stark, 
424, 



92 dental; jurisprudence 

Fee Where No Relief. — Since a dentist is not an 
insurer of the success of his treatment he is en- 
titled to the reasonable value of his services, 
whether he succeeds in curing his patient or not, 
provided he uses the skill and care of an ordinary 
skillful and careful dentist, and exercises his best 
judgment. 4 Thus, he may devote time and ma- 
terial in an effort to save an ulcerated tooth, and 
fail in the end. If he acted in good faith and the 
failure was not due to his own fault, he may re- 
cover the reasonable value of his services, meas- 
ured by the detriment to himself. 

What May Be Shown. — In General. — The prac- 
titioner may show the number of his visits or 
treatments, the time consumed, the distance 
traveled, the medicines and materials furnished. 
The implied agreement is to pay what the services 
are reasonably worth, in the market, as it were, 
and all matters bearing upon that fact are admis- 
sible in evidence by either party. 5 

Previous Charges. — Charges for similar serv- 
ices previously rendered to the same patient are 
admissible as presumably being in the minds of 
the parties at the time the services in question 
were rendered, and especially when offered on be- 
half of the patient. 6 

Frequency of Treatments. — The practitioner 
must determine the frequency of treatments re- 



iYunker v. Marshall, 65 111. App., 667. 
5 Starrett v. Miley, 79 111. App., 658. 
e Sidener v. Fetter, 19 Ind. App., 310. 



COMPENSATION" 93 

quired by the condition of his patient, and if the 
patient accepts such services he cannot escape 
liability for services actually rendered, on the 
ground that treatments were repeated more fre- 
quently than necessary, unless he can show fraud 
or other improper motive on the part of the prac- 
titioner. 7 Where the services- are admitted, but 
the alleged special contract, as to fee denied by 
the patient, the practitioner can recover at least 
what his services were reasonably worth. Thus, 
if the practitioner claims a specified amount on 
the basis of a specific contract with his patient, 
before the services are rendered, and the patient 
denies the special contract but admits that the 
services were rendered, the evidence on the ques- 
tion of contract, being equally balanced or prepon- 
derating in favor of the patient, the practitioner 
is, nevertheless, entitled to recover the reasonable 
value of his services. 8 

Pkofessional Standing. — A practitioner may 
show his high professional standing as affecting 
reasonable value of the services he performed. 9 

Nature of Remedies Must be Disclosed if 
Sought. — In an action for his fee the practitioner 
may be required to disclose the nature of rem- 
edies used by him, even though he claims a secret 
formula, and the patient may show that such rem- 



7Ebner v. Mackay, 186 111., 297; Todd v. Myers, 40 Cal., 355. 

8 Henderson v. Hall, 87 Ark., 1. 

9 Lange v. Kearney, 51 Hun., 640; 127 N. Y., 676; Heintz v. Cooper, 
(Cal.) 47 Pac, 360. (Not reported in State Reports.) 



94 DENTAL JURISPEUDENCE 

edies have no efficacy towards the result sought to 
be attained, or that they are, in fact, injurious 
when so used. 10 In reduction or defeat of a fee 
the patient may show that the practitioner commu- 
nicated to him, or his family, the smallpox while 
on the professional visits for which he is seeking 
to recover. 11 

Bill Differing from Present Claim.— The fact 
that a practitioner in an action to recover the 
value of professional services, presented a bill 
for an amount less than he is suing for, is com- 
petent evidence on the question of the value of his 
services, as it is in the nature of an admission 
that the amount thereof is the fair and reasonable 
value of the same. Some courts hold that his 
right of recovery is limited to that sum, but others 
hold that, while his own estimate of the value of 
his services is evidence against him of a high 
character, it is by no means conclusive, and that 
he still has the right to show that his services 
were in fact worth more, and that the bill was 
rendered for a less amount by mistake, or for 
some other satisfactory reason. 12 

How Proven. — The method of treatment, what 
was done and when, how and by whom, and all 
facts within ordinary observation, may be estab- 
lished by the testimony of ordinary witnesses, 



389 



10 Jones v. King, 81 Ala., 285. 

n Piper v. Manifee, 12 B. Mon. (Ky.), 465. 

12 Heath v. Kyles, 1 N. Y. Supp., 770; Williams v. Glenney, 16 N. Y., 



COMPENSATION 95 

but the propriety and skill of the treatment or 
operation can be proven only by experts on the 
subject. 13 The usual and customary fee for like 
services, and the reasonableness of the charges 
made, must be shown by the testimony of other 
practitioners. 14 In such cases, the testimony of 
the witness is ordinary in so far as it goes to the 
usual and customary fee, 15 and opinion evidence, 
in so far as it assumes to state what is a reason- 
able fee, or what is the reasonable value of the 
services. 16 

Effect of Opinions. — These opinions as to 
reasonableness of fees and value of services, while 
not binding on the court and jury, must not be 
disregarded and a value fixed by them upon their 
judgment. 17 

What May Not Be Shown. — The reasonableness 
of a charge is not shown by testimony of what 
the practitioner charged another patient in a sim- 
ilar case. 18 The professional income of the prac- 
titioner can have no bearing on the value of his 
services, regardless of the issues. 19 The patient 
will not be permitted to show for what he could 



13 Spaulding v. Bliss, 83 Mich., 311. 

14 Chicago v. Wood, 24 111. App., 40; Wood v. Ohio R. Co., 53 S. C, 
10; MacEvitt v. Maass, 72 N. Y. Supp., 158. 

15 Walker v. Cook, 33 111. App., 561-3. 

16 Marion Co. v. Chambers, 75 Ind., 409 ; MacEvitt v. Maass, 72 N. Y. 
Supp., 158. 

17 In re Smith, 41 N. Y. Supp., 1093; Ladd v. Witte, 116 Wis., 35; 
Wood v. Baker, 49 Mich., 295; Spalding v. Bliss, 83 Mich., 311. 

18 Collins v. Fowler, 4 Atl., 647. 

19 Marion County v. Chambers, 75 Ind., 409 ; Thomas v. Caulkett, 57 
Mich., 392. 



96 DENTAL. JURISPRUDENCE 

have procured other practitioners to render the 
services in question. 20 Neither can he show, in 
defense, the practitioner's bad character or bad 
reputation generally. 21 

Professional Character of Practitioners. — In 
such an action the professional character of the 
practitioner is not involved, and evidence on that 
subject is immaterial and cannot be introduced. 22 

Pecuniary Circumstances of Patient. — The pe- 
cuniary circumstances of the patient or practi- 
tioner are not an element in determining the value 
of the services, as the value, whether considered 
as a benefit to the one, or a detriment to the other, 
cannot be affected by the ability of the obligor 
to pay or the necessities of the obligee. 23 

Special Agreement as to Result.— Where a pro- 
fessional man makes a special agreement to af- 
ford relief to his patient, or to accomplish any 
other specific result, he cannot recover either for 
services rendered or material supplied, unless he 
reasonably accomplishes what he promises. 24 In 
this connection, it may be said that an agreement 
to do work to the satisfaction of another, means 
to do such work that the party ought to be satis- 
fied therewith. He cannot object to it from sheer 



20 Marion Co. v. Chambers, 75 Ind., 409. 

21 Jeffries v. Harris, 10 N. C, 105. 

22 Jeffries v. Harris, 3 Hawks, 105. 

23 Wheaton v. Johnson, 55 111. App., 53 ; Hess v. Lowrey, 122 Ind., 225 ; 
Robinson v. Campbell, 47 la., 625; Marrisett v. Wood, 123 Ala., 384. 
Apparently contra, Succession of Haly, 50 La. Ann., 840. 

24 Smith v. Hyde, 19 Vt., 54. 



COMPENSATION 



97 



caprice or merely to avoid his obligation. 23 If 
there is an express contract, conditional on suc- 
cessful treatment, the practitioner must show that 
the condition has been reasonably performed, as 
an essential element of his right to recover. 26 

Liability of Third Person. — A mere request by 
a third person of a practitioner to render serv- 
ices for another, does not raise an implied prom- 
ise, on the part of the person making the request, 
to pay for the services. 27 

License Presumed. — In an action for fee, in the 
absence of any evidence, it will be presumed that 
the practitioner had a license. 2S 

Unlicensed Practitioners. — An unlicensed prac- 
titioner cannot recover for his services in a state 
where the statutes in force at the time the services 
were rendered require a license, and especially if 
the statutes bar recovery, or fix a penalty for 
practicing without license. 29 

Necessaries. — Under the law a minor is liable 
for necessaries furnished him to the extent of their 
reasonable value at the time. A special contract 
with the minor relative to the consideration is 
disregarded. A husband is liable for necessaries 



25 Keeler v. Clifford, 165 111., 544, 548. 

26 Hupe v. Phelps, 2 Stark, 480 ; Smith v. Hyde, 19 Vt., 54 ; Mock v. 
Kelley, 3 Ala., 387. 

27 Starrett v. Milery, 79 111. App., 658. 

28 Good v. Lascher, 99 III. App., 653 ; Williams v. People, 20 111. App., 
92. 

29 Patrick v. Perryman, 52 111. App., 514; Chicago v. Honey, 10 111. 
App., 535; Warren v, Saxby, 12 Vt., 146; Oscanyan v. Winchester Co., 
103 U. S., 261; Harrison v. Jones, 80 Ala., 412; Orr v. Meek, 111 Ind., 
40. 



98 DENTAL JURISPRUDENCE 

furnished his wife. This liability attaches even 
though they are supplied her over his objection, 
when he fails or refuses to provide the same. The 
estate of an insane person is liable to the party 
who supplies him with necessaries. 

What Are Necessaries. — The question of what 
are necessaries, has often been adjudicated by the 
courts. Like most cases coming before the courts, 
the answer is not always self-evident. A neces- 
sity to one might be a luxury to another, while a 
luxury today may be a necessity tomorrow. With 
reference to husband and wife necessaries em- 
brace the usual provisions for maintenance of the 
wife's health and comfort appropriate to their 
mode of life, in view of their social standing and 
station, and his financial ability. 30 

Dental Services. — It is a matter of common 
knowledge that artificial teeth are most useful and 
necessary articles for the promotion of personal 
comfort and health, and that their use in this 
country has attained practical universality ; there- 
fore, a husband is primarily liable for artificial 
teeth furnished his wife on her order. 31 Artifi- 
cial teeth must be considered necessaries for which 
the husband is liable, when they have been fur- 
nished the wife, and she has retained them with 
his knowledge, and where he has given the dentist 
who supplied them reason to believe from pre- 



30 McMahon v. Lankley, 133 111., 636; Clark v. Tenneson, 146 Wis., 65. 

31 Clark v. Tenneson, 146 Wis., 65, 67. 



COMPENSATION 99 

vious conversation with him that she was author- 
ized to contract for them. 32 The filling by a 
dentist of the decayed teeth of a minor who was 
fifteen years old and the owner of considerable 
estate, where the work was reasonably necessary 
for the preservation of the teeth, was considered 
a necessity for which his estate was liable. 33 

Selection op Dentist. — Ordinarily the hus- 
band has the right to select the dentist who per- 
forms work for the wife, and it is the wife's duty 
to go where the husband determines. Therefore, 
if a husband specifically objects to a dentist and 
provides for his wife a reasonably competent per- 
son to do the work for her, the dentist objected 
to cannot, with knowledge thereof, render the 
services and hold the husband liable therefor. In 
such case he could look only to the wife, and 
should make a contract or special agreement with 
her to that effect. The same rule applies to 
guardian and minor, and similar relations. 

Persons Under Disability. — As a general prop- 
osition, the estate of any person under legal dis- 
ability, for any cause, will be liable for dental 
work and services reasonably necessary for the^ 
health, comfort, convenience or appearance of the 
patient, and the measure of the liability is the fair, 
reasonable value of the services and materials. 

Family Expenses. — Dental services for husband 



32 Gilman v. Andrus, 28 Vt., 241. 

33 Strong v. Foote, 43 Conn., 203, 205. 



100 DENTAL JURISPRUDENCE 

or wife or any minor member of the family are 
reasonably within the intent of those statutes 
which make both husband and wife liable for fam- 
ily expenses. 

Parent and Child.— Liability of Parent.— At 
common law the liability of a father for the sup- 
port, maintenance and education of his minor 
child, while recognized, was not well denned and 
amounted to little more than an imperfect unen- 
forcible obligation. The duty was always con- 
ceded, but the manner of its discharge was ex- 
clusively within the discretion of the parent. The 
party who voluntarily supplied the wants of a 
minor had no legal claims against the parent, 
and all that he did in this respect was at his 
own risk, unless he had the express promise of 
the father to remunerate him, or the circumstances 
were such that a promise of that character would 
reasonably be implied. In the absence of special 
legislation, this obligation remains the same as at 
common law, and the general rule prevails that 
where a person furnishes necessaries to a minor 
without authority from the parent, he does so at 
his peril and, in order to recover from the parent, 
he must show by a preponderance of the evidence, 
either an express authority or circumstances from 
which such authority may be implied. The par- 
ent is to be the judge of the wants of his child 
and of his ability to supply them, and the extent 
to which he shall respond to this obligation, and, 



COMPENSATION 101 

when no express authority has been given to the 
child to bind the parent, it devolves upon the 
party supplying such necessities to show the neg- 
lect or refusal of the parent to provide the same. 

Minor, Special Agent of Father. — Where the 
child has authority to bind the parent it is usually 
in the nature of a special agency, and the party 
dealing with the minor is bound to know the ex- 
tent of that authority. Where a parent sent his 
daughter of sixteen to a particular dentist to have 
work done at his expense, and the child, of her 
own volition, went to another dentist and had the 
work done, the child was regarded as a special 
agent of the parent and the dentist who did the 
work could not recover, irrespective of the value 
of the services or the character of the work. 34 It 
behooves the dentist to know that the minor has 
express authority to bind the parent with refer- 
ence to the particular services. 

Liability of Mother. — In states where married 
women have complete control of their separate 
estate, a mother may bind herself to pay for den- 
tal services rendered to her minor children, not- 
withstanding the father is living and able to pay. 

Malpractice. — The evidence that will sustain an 
action against a practitioner for malpractice will 
be sufficient to defeat his recovery in an action 
for compensation in such case. In fact less neg- 
ligence is necessary to defeat a right to compensa- 



34 Dumser v. Underwood, 68 111. App., 121. 



102 DENTAL JUKISPKUDENCE 

tion than is requisite to sustain an action for 
injury for the malpractice. 35 If the services of 
the practitioner were of no value and if the rem- 
edies used in the treatment of the patient were 
worthless and possessed no efficacy in producing 
a cure, and these facts were known to the practi- 
tioner, or ought to have been known to him at the 
time of the treatment, no recovery can be had 
for the services. 36 



35 Nixon v. Phelps, 29 Vt. 198; Loan, etc. v. Friedley, 123 Ind., 143; 
Hill v. Featherstoneaugh, 8 Bing. (Eng.), 572. 

36 Logan v. Field, 75 Mo. App., 594, 603. 



CHAPTER IX 

LICENSE 

I. Right to Require or Issue 

Common Law Rights. — At common law any one 
might practice medicine or dentistry or perform 
surgical or dental operations. No preliminary 
preparation and no license to practice were re- 
quired as a matter of law. This condition was 
also true on the continent of Europe within the 
jurisdiction of the civil law. Of course the prac- 
titioner was responsible to his patient for the ex- 
ercise of an ordinary and reasonable degree of 
skill and knowledge, as measured by the standard 
of proficiency and professional learning at the 
time; but the State did not then attempt to pro- 
hibit incompetent persons from practicing nor to 
regulate the standard of proficiency by establish- 
ing a minimum standard of qualification. To 
adopt and follow such lawful pursuit not injurious 
to the community, as he may see fit, is a funda- 
mental right and privilege of every American citi- 
zen. 1 

Public Welfare. — "It is undoubtedly the right 
of every citizen of the United States to follow any 



l Frorer v. People, 141 111., 171. 

103 



104 DENTALi jurisprudence 

lawful calling he may choose, subject only to such 
restrictions as are imposed upon all persons of 
like age, sex and condition. This right may, in 
many respects, be considered as a distinguishing 
feature of our Republican institutions. Here, all 
vocations are open to every one on like condition. 
The right to continue the practice of a profession 
is often of great value and cannot be arbitrarily 
taken away any more than real or personal prop- 
erty can, but there is no arbitrary deprivation of 
such right, where its exercise is not permitted be- 
cause of a failure to comply with conditions im- 
posed by the state for the protection of society. 
The power of the State to provide for the general 
welfare of its people authorizes it to prescribe 
all such regulations as may be and are necessary 
to secure the people against the consequences of 
ignorance and incapacity as well as deception and 
fraud." 2 

Right of State. — The right of the states to regu- 
late the practice of dentistry by fixing a reason- 
able and uniform standard of requirement is 
universally recognized by the courts and has 
passed out of the realm of discussion. The legis- 
lature may fix, by statute, reasonable standards 
for determining the competency and fitness of ap- 
plicants for license to practice dentistry and den- 
tal surgery, 3 or it may provide for a Board of 



2 Dent v. W. Va.. 129 U. S., 114, 121. 

3 Rx. parte Whitely, 144 CaL, 167,; 1 A- €*, 13. 



LICENSE 105 

Examiners and invest it with power to establish 
the same. 4 

Requirements. — The public welfare requires not 
only competence in the practitioner but also mo- 
rality, general uprightness, respectable appearance 
and reasonable obedience to law. A grossly im- 
moral or criminal practitioner is more dangerous 
to society than one who is merely incompetent 
and, therefore, good moral character and a record 
free from crime are universally required of ap- 
plicants, and the courts have universally held such 
provisions constitutional. The same body which 
is empowered to determine the competency of per- 
sons may also pass upon the other qualifications 
required, and reject those who do not fulfill rea- 
sonable demands in this behalf. While such laws 
are an invasion of the common law right of the 
individual, they are justified on the ground of pub- 
lic necessity. Ordinarily the law cannot inter- 
fere with freedom of private contract. Why 
should the citizen not be permitted to engage 
whomsoever he pleases to administer to him when 
he is sick or relieve him of dental troubles when 
they assail him? The answer is, The public must 
protect itself against impostors, fakers, charla- 
tans, ignoramuses and quacks. 

Unreasonable Limitations. — Public welfare and 
interest are safeguarded when proper qualifica- 



4 In re Thompson, 36 "Wash., 377; 2 A. C, 149; State v. Eosenkrans, 
) E. I., 374; 19 A. C, 824. 



106 DENTAL JURISPRUDENCE 

tions and fitness are assured. When that object 
is accomplished interference should cease. 

Restrictions. — A restriction should have some 
reasonable relation to the purposes to be attained. 
The requirement that an applicant for examination 
for license to practice must be a graduate of a 
college or school or some particular class of school 
is not only unreasonable and unjust, but also not 
reasonably promotive of the object to be attained 
— the selection of fit and competent persons. » How 
or when or where, or within what period of time 
the qualifications were attained, are matters in 
which the public is not concerned. 5 The only test 
should be, Is the party competent, worthy and fit 
to practice the profession? What he has, not 
where he got it, should be the subject of inquiry. 
What he can do, not where he acquired the ability 
nor how long it required him to attain proficiency, 
is the element of public interest and inquiry. A 
requirement that a party must be a graduate of a 
particular college or particular class of college, 
is unfair discrimination which the public should 
not tolerate. It excludes the competent citizens 
who acquired their information in other schools 
or by private tuition and instruction. It does not 
answer the objection to say that the requirement 
excludes only the incompetent, that is, only those 
who cannot stand the required test as to pro- 
ficiency. The existence of the rule presupposes 



5 Almond v. Nugent, 34 la., 300. 



LICENSE 107 

the contrary. If such rule excludes only the in- 
competent then why not eliminate them by the 
usual examination, — the same process by which 
other incompetents are excluded. If present 
standards and methods of examination do not 
eliminate all incompetents then better change the 
standard or the method of examination. The 
trouble is, the limitation in question is intended 
to get rid of, not the unqualified, but a class, re- 
gardless of qualification and fitness and, as such, 
is an unjustifiable exercise of the police power. 
The restrictive and classifying provisions of such 
statutes are uniformly considered void unless they 
are in fact in good faith reasonably within the 
necessities of the public protection and promotive 
of the public welfare. 6 

Power of the State.— The courts uniformly hold 
that the State may regulate the practice of den- 
tistry and, for that purpose, may establish a 
Board of Examiners with power to fix reasonable 
regulations for examination and standards of pro- 
ficiency and fitness required on the part of appli- 
cants for license. 7 Dentistry is regarded as an 
occupation which reasonably falls within the legis- 
lative right of regulation, under the police power. 
The statutes usually excuse from examination 
dentists who are practicing in the state at the time 



6 Railway Company v. Jacksonville, 67 111., 37; Lake View v. Cemetery 
Co., 70 111., 192; Babcock v. Buffalo, 56 N. Y., 268; Evarts v. Council 
Bluffs, 46 la., 46. 

7 1 A. C, 13. 



108 DENTAL JURISPRUDENCE 

the law takes effect. Such exemption is legal and 
does not render the act void. 8 A statute which 
requires that an applicant for a license to prac- 
tice dentistry shall have a diploma from some 
dental college in good standing, and shall pass 
an examination by a Board of Examiners, has 
been held not unreasonable, even when there is no 
dental college in the state. 9 A statute which per- 
mits the Board of Examiners to determine 
whether an applicant for a certificate has gradu- 
ated from a reputable dental college has been held 
not a delegation of judicial power to an inferior 
board, and the requirement not unreasonable but 
enforcible. 10 As before stated, these statutes and 
decisions are not justified by the reason which 
gives the law validity, namely, the public welfare. 
The limitation to graduates of particular schools, 
is either shortsightedness or bad faith, and in 
either event should not be upheld. It is an un- 
warranted interference with individual rights. 

Boards of Examiners. — Statutes usually pro- 
vide for a dental board, and leave the matter of 
fixing a standard of qualification to such board, 
and it has been held that such provision is not a 
delegation of either legislative or judicial power 
to an inferior body. It has been universally held 
that reasonable license-statutes are a lawful ex- 



8 27a; parte Whitely, 144 Cal., 167; 1 A. C, 13; State v. Rosenkrans, 
30 R. I., 374; 19 A. 0., 824; Driscoll v. Commonwealth, 93 Ky., 393. 

9 State v. Littooy, 52 Wash., 87; 17 A. C, 292. 

10 Ex parte Whitely, 144 Cal., 167; 1 A. C, 13. 



LICENSE 109 

ereise of the police power; are not an unlawful 
abridgment of the rights and privileges of citi- 
zens ; are not an infringement on the right of con- 
tract; do not deny a citizen the equal protection 
of the law; are not an unwarranted interference 
with vested rights and are not an unlawful delega- 
tion of legislative or judicial power. 11 However, 
there must be no unreasonable classification with 
extra burdens on some, not on others. 12 

Statutes Construed Liberally. — Though, in a 
measure, in derogation of the common law, the 
statutes and regulations should be liberally con- 
strued to promote and accomplish the object of 
their creation. 13 Ordinarily a person licensed to 
practice medicine cannot practice dentistry, with- 
out obtaining a license to engage in such practice, 
in a state requiring dentists to procure a license 
before engaging in the profession. 14 In a prose- 
cution for practicing without a license, it is im- 
material that the defendant is entitled to a license, 
or that the Board unlawfully withholds the same 
from him. 15 It is no defense to such prosecution 
that the complaining witness who was in the em- 
ploy of the Board of Dental Examiners went to the 
office of the dentist, had him fill a cavity in his 
tooth and paid him for the services with the view 



11 1 A. C, 13. 

12 State v. Gravett, 65 Ohio St., 289. 

13 Smith v. People (Col.) 36 L. R. A., 158; State v. Yegge, 19 S. D., 
234; 9 A. C, 202. 

14 State v. Taylor, 106 Minn., 218; 16 A. C, 487. 

15 State v. Mosher, 78 la., 321. 



110 DENTAL JURISPRUDENCE 

of prosecuting him therefor, and the court was 
justified in refusing an instruction to the jury that 
such a fact was a defense. 16 

II. Power to Revoke 

Reserved Right. — The power to grant a license 
to the competent and fit and refuse a license for 
incompetency or unworthiness carries with it the 
power to revoke, for cause, a license which has al- 
ready been issued. The causes which will justify 
refusing a license will ordinarily justify revoking 
the same. The issuing of a license for supposed 
merit must necessarily imply the reservation of 
the right to revoke the same if it shall subse- 
quently appear that it was obtained by fraud or 
through mistake by one not entitled thereto, or in 
event the licensee shall subsequently prove in- 
competent or unworthy. From the very nature 
of things, a license can be held only during good 
behavior. The purpose of the law, the protection 
of society, demands this interpretation. 

Not Vested Right. — A license is not a vested 
right, nor an irrevocable franchise, but is at all 
times subject to the police power and the policy 
of the State in the protection of its citizens. A 
person cannot acquire an absolute vested right 
under a license for any definite period beyond 
the control of the police power of the State. A 
license to practice a profession confers no vested 



16 State v. Littooy, 52 Wash., 87; State v. Smith, 152 N. C, 798; 
L. R. A., 946, 954; 25 L. R. A., 341 et seq. and 349 et seq. 



LICENSE 111 

right or privilege above legislative control. 
Eight to practice any profession is not property, 
within the strict meaning of the term, and does 
not amount to a contract with the State, within 
the meaning of these constitutional terms. Gen- 
erally speaking, the legislative power of the 
State may prescribe the conditions on which any 
avocation or calling, affecting the public, shall be 
pursued. A licensee takes the license subject to 
all the conditions and restrictions imposed by the 
law under which the same was issued or granted, 
including the reservation of the right to revoke, 
for cause, on proper notice and reasonable oppor- 
tunity to be heard. 17 

Manner of Revocation — Notice — Hearing. — Be- 
fore a license can be revoked by a board of exam- 
iners, the licentiate must be given due notice and 
a reasonable opportunity to be heard. Nothing 
is presumed in favor of the jurisdiction of such 
a body, and the particular facts necessary to con- 
fer jurisdiction must be made to appear from the 
record of its proceedings. If the records do not 
show such jurisdictional facts, the judgment will 
be void. 18 

Not a Judicial Function. — The revocation of a 
license to practice a profession is not necessarily 
the exercise of a judicial function, where all the 
formalities of courts of justice must be observed, 



17 Launder v. Chicago, 111 111., 291; People v. McCoy, 125 111., 289. 

18 Swearengen v. Gulick, 67 111., 208; Foster v. Glazenor, 27 Ala., 391: 
Harney v. Tyler, 2 Wall., 342; Freeman on Judgments, Sec, 123. 



112 DENTAL JURISPRUDENCE 

and the action of a board invested with such power 
in revoking a license, for justifiable cause, is not 
the deprivation of the practitioner of property 
without due process of law, in violation of sec- 
tion 8 of article 2 of the Federal Constitution. 
1 'Due process of law, or the law of the land 
(which means the same thing) does not necessarily 
refer to judicial proceedings. Private rights and 
enjoyment of property may be interfered with by 
the legislative or executive, as well as the judicial, 
department of the government. When it is de- 
clared that a person shall not be deprived of his 
property without due process of law, it means 
such an exercise of the powers of government as 
the settled maxims of law permit and sanction, 
under such safeguards as these maxims prescribe 
for the class of cases to which the one in question 
belongs. ... It has never been held that the 
granting or refusing to grant a license to practice 
a profession was the exercise of judicial power, 
. . . and there is no possible distinction in this re- 
spect between refusing to grant a license and re- 
voking one already granted. Both acts are an 
exercise of the police power, — the application of 
administrative discretion. The power exercised 
and the objects of its exercise are in each case 
identical, namely, to exclude an incompetent or 
unworthy person from such employment. There- 
fore, the same body which may be vested with the 
power to grant or refuse to grant a license, may 



LICENSE 



113 



also be vested with the power to revoke. . . . The 
constitutionality of such laws, as a valid exercise 
of the police power, has often been sustained and, 
indeed, rarely questioned. Disbarment of an at- 
torney by a court from his office as attorney of the 
court, like the order of his admission, is the ex- 
ercise of judicial power and is a judgment of the 
court ; but the usual cases of license to practice a 
profession are not analogous to the case of an at- 
torney. The cases relating to the disbarment of 
attorneys are based expressly upon the ground 
that attorneys are officers of the court, whose 
duties relate almost exclusively to proceedings of 
a judicial nature, and that, at common law, it 
rested exclusively with the court to determino 
who is qualified to become one of its officers, and 
also for what cause he ought to be removed. 
Therefore, it is held that attorneys can only be 
disbarred from office for misconduct ascertained 
and declared by judgment of the court. ' ' 19 

Charges. — While it is highly desirable that spe- 
cific charges be preferred, setting forth the nature 
of the offense, still the Board may act upon an in- 
formal complaint, provided the licentiate be given 
a reasonable opportunity to meet all the evidence 
adduced against him. The charges need not be 
stated with the accuracy of an information or an 
indictment in criminal law; they are sufficient if 
they challenge the attention of the Board and no- 



19 Chapman v. State, 34 Minn., 387. 



114 DENTAL. JURISPRUDENCE 

tify the licensee of the nature of the accusations 
made against him. 20 

Proceedings. — Investing an examining Board 
with power to issue and revoke license for cause, 
is not, generally speaking, clothing it with judicial 
power, but rather investing it with administra- 
tive discretion. When hearing complaints, such 
Board is not a judicial body, and it is not required 
to adhere strictly to rules of procedure in court 
in the conduct of the hearing or in the introduc- 
tion of evidence. Its findings and decisions, made 
in good faith and, after due notice and reasonable 
opportunity to be heard, are binding on the courts 
unless clearly wrong. 

Grounds or Causes. — Immorality. — The element 
of good moral character is a prerequisite to the 
practice of any profession. Such requirement 
has become a settled policy of all the states and 
has been held to be indispensable to the exercise 
of the right under a license. 21 In other words, a 
license may be revoked for immorality; and this 
applies, even though the only evidence offered, or 
specifications given, are of acts prior to the time 
the license was issued, or even prior to the pas- 
sage of the law under which the license was 
granted. The law which permits such revocation 
is not ex post facto. 

Character, How Proven. — The real ground of 



20 Meffert v. Packer, 66 Kan., 710. 

21 1 L. R. A., 814. 



LICENSE 115 

revocation is want of good moral character at the 
time of complaint or hearing. Of necessity, this 
want can be proven only by past conduct, suffi- 
ciently recent to leave an inference of present de- 
linquency. Character is built by a course of 
conduct. Acts are the cause; character, the re- 
sult. In such case, the party is not being tried 
for past offenses, but for the present deficiency 
which the prior conduct tends to prove. If, in 
the meantime, a reformation has taken place, it 
should be susceptible of proof, and such fact must 
be within the knowledge, and the means of proof, 
therefore, must always be at the command of the 
accused. 

If Right to Refuse, Then Right to Re- 
voke. — The Board has the power to revoke certif- 
icates issued to individuals for the same reasons 
it may refuse to issue such certificates. However, 
it cannot, from mere caprice or without cause, re- 
voke a certificate, fairly issued, upon sufficient 
evidence of the applicant's qualifications. 22 The 
right of the citizen to practice his profession is 
too important to be taken away from him without 
some reasonable cause. The revocation must be 
based upon some act or conduct that would, in 
common judgment, be deemed immoral, unworthy, 
dishonorable or clearly unprofessional. 

Guilt Must be Found. — The revocation of a 
certificate cannot be sustained when it does not 



22 People v. McCoy, 125 111., 289. 



116 DENTAL JURISPETJDENCE 

appear from the record of the proceedings that 
the Board, from evidence submitted to it, or other- 
wise, ever found the holder of the certificate guilty 
of any act or conduct that was unprofessional or 
dishonorable. Whether the right to practice a 
profession is property in the technical sense, it 
is a valuable franchise and one of which a person 
cannot be deprived without an opportunity, by 
timely notice, to refute the charges preferred 
against him. Where a practitioner had a charge 
made against him of making statements and 
promises calculated to deceive and defraud the 
public, of which charges he had no notice, and of 
which he was never found guilty upon any evi- 
dence of its truth, an order of the Board revoking 
his certificate was unauthorized and void, and was 
set aside by the court. 23 

In the case last referred to, the court held that 
the making of statements and promises by a physi- 
cian with reference to the treatment and cure of 
the sick and afflicted, which were calculated to de- 
ceive and defraud the public, were unprofessional 
and dishonorable, and would properly subject the 
offender to a revocation of his license, in a legal 
manner. 

Adjudicated Cases. — Among numerous other 
causes the courts have held that the following are 
grounds for the revocation of a license to practice 
medicine or dentistry : 



23 People v. McCoy, 125 111., 289. 



LICENSE 117 

Fraud in procuring the license 24 such as, pre- 
senting a fraudulent diploma ; 25 or one issued to 
another person ; 26 statements in advertising, that 
the advertiser can cure all diseases, or statements 
which are calculated to deceive and defraud the 
public; 27 gross immorality; 28 sale of intoxicating 
liquors without a license and without prescrip- 
tion; 29 criminal abortion; 30 maintaining two of- 
fices under different names with the intent there- 
by to perpetrate a fraud upon the public; 31 
false advertisement by a dentist as to price, the 
making of teeth without bridges or plates, the 
re-enameling of teeth, the tightening of loose 
teeth, or curing of pyorrhea and other misstate- 
ments tending to deceive the public and to im- 
pose on the ignorant and credulous, where a stat- 
ute provided for revocation for fraud, deceit, 
misrepresentation or gross violation of profes- 
sional duties ; 32 an advertisement relating to ve- 
nereal diseases, in violation of law ; 33 commission 
of a felony ; 34 accepting money from persons in 
the last stages of consumption, under the repre- 
sentation that they were suffering from ca- 



24 Curryer v. Oliver, 27 Ind. App., 424. 

25 Gully v. Territory, 19 Okl., 187. 

26 State v. Roy, 22 R. I., 538. 

27 State v. McCrary, 95 Ark., 511. 

28 Meffert v. Packer, 66 Kan., 710. 

29 State v. Goodier, 105 Mo., 551. 

30 Matthews v. Hedlund, 82 Neb., 825; Munk v. Frink, 81 Neb., 631. 

31 Rose v. Backster, 7 Ohio N. P. N. S., 132. 

32 State v. Purl, 228 Mo., 1. 

33 Kennedy v. State, 145 Mich., 241. 

34 Spurgeon v. Rhodes, 167 Ind., 1. 



118 DENTAL JURISPRUDENCE 

tarrhal-bronchitis, when he must have known the 
truth ; 35 advertising to cure incurable diseases, 
where a statute prohibits the same ; 36 and con- 
viction of an offense involving moral turpitude. 

Revocation and Criminal Prosecution. — A li- 
cense may be revoked for a criminal offense be- 
fore the party has been prosecuted for the crime, 
as the criminal prosecution and the revocation of 
the license are absolutely independent proceed- 
ings. 37 

Jury Trial. — In an action to revoke a license, 
the defendant is not entitled to a trial by jury, 
and it is not necessary that the proceedings shall 
be conducted with that degree of exactness re- 
quired upon a trial for a criminal offense, in an 
ordinary judicial tribunal. 38 

Statutes of Limitation.— The object of a revo- 
cation of a license is the protection of society, not 
the punishment of the licensee. Therefore, the 
statutes of limitations do not apply to such pro- 
ceedings and a party may have his license re- 
voked for an offense for which he cannot be prose- 
cuted criminally, owing to the statute having run 
against the offense. 39 



35 In re Washington, 23 Ont. Rep., 299. 

36 State v. McCrary, 95 Ark., 511. 
37Munk v. Frink, 81 Neb., 631. 

38 Munk v. Frink, 81 Neb., 631. 

39 State v. Stewart, 52 Wash., 61; 11 L. R. A., 557; to re Lowenthal, 
78 Cal., 427; Ex parte Tyler, 107 Cal., 78; State v. Schaeffer, 129 Wis., 
459; People v. Hooper, 218 111., 313. 



CHAPTER X 
CONTRACTUAL RELATIONS 

General Observations. — As before stated, the 
relation of patient and practitioner is contractual 
in character, two consenting minds being neces- 
sary to create the relation. In other words, it is 
voluntarily assumed, — not imposed by law as a 
matter of duty and public policy. In fact most 
relations in life are voluntary in nature, and a 
party may avoid their responsibilities by refrain- 
ing from entering into them, but, generally speak- 
ing, he cannot enjoy their benefits and emolu- 
ments without incurring the obligations which the 
law, as a matter of public policy, imposes there- 
on. The marriage relation is a good illustra- 
tion. 

Contracts. — Not only is the relation in question 
founded on agreement of the parties, express or 
implied, but also all transactions between a prac- 
titioner and his patient are based upon contract 
and, therefore, the general principles of the law 
of contracts apply. 

In its widest acceptation, contract is the basis 
of social and political organization. In this 
meaning of the term all obligations of the indi- 

119 



120 DENTAL, JURISPRUDENCE 

vidual to society or to government result from his 
implied agreement. Here, contract is synony- 
mous with duty. The individual has contracted 
to do and to refrain from doing all that which, 
in the then conception of right and wrong, it be- 
comes his duty to do or not to do. But, accord- 
ing to the use of the term in law, contract has a 
more definite meaning. " Jurisprudence is con- 
cerned with such rights only as are recognized by 
law and enforced by the power of the State." A 
right which cannot be enforced in law is an im- 
perfect obligation. 

Definition. — "A contract is an agreement be- 
tween two or more competent persons, upon suf- 
ficient consideration, to do or not to do some law- 
ful thing." 1 

Kinds of Contracts. — Contracts may be said to 
be express or implied, and the latter may be 
again divided into (a) those in which the agree- 
ment is a natural and reasonable inference from 
the circumstances of the transaction, and (b) 
those where the law imposes the duty as a matter 
of public policy irrespective of the real intention 
of the parties. The latter are sometimes called 
constructive contracts. 2 

An express contract is one in which the parties 
have declared orally or in writing the terms of 
their agreement. 



1 2 Bl. Com., 446. 

2 Hertzog v. Hertzog, 29 Pa. St., 465, 



CONTRACTUAL RELATIONS 121 

An implied contract is one in which the terms 
of the agreement are an inference of fact or law 
deduced from the conduct of the parties in rela- 
tion to its subject matter, or imposed by law as 
a matter of duty. In this sense, contract may 
be conterminous with legal duty. It is a well rec- 
ognized maxim, though not of universal applica- 
tion, that whatsoever a man ought to do the law 
supposes he has promised to do. "Implied con- 
tracts are such as reason and justice dictate and 
which, therefore, the law presumes that every man 
undertakes to perform." 3 In the first class of 
implied contracts above referred to, the agree- 
ment or promise is signified by some other means 
or symbols than words ; thus, where a person or- 
ders and accepts goods at a store and says noth- 
ing further, there is an implied promise, from 
the order and acceptance, to pay for them. There 
is an inference that the person who receives the 
benefit of labor expended or professional services 
rendered, promises to pay the reasonable and cus- 
tomary charges therefor. Thus, a sick patient 
impliedly agrees to pay a consulting physician 
for his services, even though, as between the phy- 
sicians, or as between the patient and the attend- 
ing physician, the attending physician agreed to 
pay him. 4 The same inference applies in the case 
of the employment of an assistant or consulting 



3 2 Bl. Com., 443. 

4 Shelton v. Johnson, 40 la., 84; Garry v. Stadler, 67 Wis., 512. 



122 DENTAL JURISPRUDENCE 

attorney; in the absence of other understanding, 
the client who knowingly accepts the services is 
liable therefor. 

In the second class of implied contracts, the 
inference of an agreement or promise is a pure 
fiction. It is sometimes made not only (a) in the 
absence of, but also (b) in direct conflict with, the 
real intention of the obligor. The want of inten- 
tion is illustrated in the case of treasure-trove 
which the finder converts to his own use in the 
belief that the owner is unknown. If the owner 
appears, and claims and proves his ownership, 
the law raises a promise on the part of the finder 
to compensate him for the value of the property 
converted. Where the inference of law is in op- 
position to the real intention of the obligor ap- 
pears in the case of a thief taking and appropri- 
ating to his own use the property of another. 
Here the law raises a promise to pay the value 
of the property on demand, and in an action by 
the owner to recover for the goods thus wrong- 
fully taken, the thief will not be permitted to show 
that he did not intend to pay for them. 

A contract may be partly express and partly 
implied, partly oral and partly written; but, 
where there is a complete express contract, there 
cannot be an implied contract inconsistent there- 
with. An express and an implied contract cannot 
both exist in the same part of a transaction, or 
touching the same right or obligation. Where an 



CONTRACTUAL RELATIONS 123 

express contract is shown, there cannot be main- 
tained an action based upon an implied agreement 
as to the same matter, neither against a party 
nor against a third person. 5 An express agree- 
ment necessarily excludes an implied one. 6 What 
is implied in an express contract is as much a 
part of it as what is expressed. 7 A written 
contract is one which, in all its terms, is re- 
duced to some form of written language. 8 All 
prior propositions are superseded by the written 
agreement, and all prior and contemporaneous 
stipulations, material to the contract, are merged 
in it. 9 The written contract is presumed to con- 
tain all the agreement and when it appears to be 
complete the burden of proof is upon the party 
who seeks to establish the contrary. But where 
only part of a contract has been reduced to writ- 
ing, extrinsic evidence is admissible to show the 
complete contract. 10 When a written contract is 
so incomplete as to require resort to extrinsic evi- 
dence to make it enforcible, it may be treated as 
an oral contract. 11 

Delivery. — A written contract takes effect, if at 
all, upon delivery, unconditional and as a con- 
tract. Where there is no delivery there is no 



5 Shaw v. Graves, 79 Maine, 166; Ford v. MeVay, 55 111., 119. 

6 Ramming v. Caldwell, 43 111. App., 175. 
T Hart v. Otis, 41 111. App., 432. 

8 Memory v. Niepert, 131 111., 630. 

9 School Dist. v. Stilley, 36 111. App., 135; Covel v. Benjamin, 35 HI. 
App., 299; Casselberry v. Warren, 40 111. App., 627. 

10 Covel v. Benjamin, 35 111. App., 299. 

li Plumb v. Campbell, 129 111., 106; Wood v. Williams, 40 111. App., 117. 



124 DENTAL JURISPEUDENCE 

contract. 12 If delivery is conditional, the condi- 
tion must first be performed. 13 

Executed and executory is also a classification. 
In an executed contract both parties did all that 
they were required to do under the agreement, at 
the time the agreement was made. It creates 
rights in rem; it gives title to property at the 
time of its execution. Technically, this is not a 
contract at all. When the agreement is reached, 
all acts are performed and, in the absence of 
fraud, accident or mistake, that is the end of it. 
Each has received something as an equivalent for 
what he gave. 

In an executory contract something remains to 
be done by one or both parties after the execu- 
tion of the contract. It contemplates something 
in the future, and creates rights in personam and 
in rem. Executory contracts must have the qual- 
ity of mutuality; if one of the parties is bound, 
the other must be bound; if one is at liberty to 
refuse performance, the other cannot be compelled 
to discharge his promise. 14 

Parties. — Two competent parties are essential 
to the making of a contract. A person cannot 
contract with himself. 15 

Any person not under legal disability is compe- 
tent to contract. Infants and persons of unsound 



12 Bierdeman v. O'Connor, 117 HL, 493. 

13 Jordan v. Davis, 108 111., 336 

14 Weaver v. Weaver, 109 HI., 225. 

15 Nelson v. Hayner, 66 111., 4A7. 



CONTRACTUAL KELATIONS 125 

mind do not have full legal capacity to become 
parties to binding obligations, and courts will set 
aside contracts which are not manifestly to their 
advantage. However, to justify the setting aside 
of a contract on the ground of mental incapacity 
of one of the parties to it, the mental debility 
must be such as, in law, renders the person in- 
capable. 16 Infants may make binding obligations 
for necessaries actually furnished them, but not 
for money loaned them though subsequently in- 
vested in necessaries. Necessary dental treat- 
ment is a legal necessity, within reasonable limits, 
for which a minor will be held liable. 17 

Consideration. — The law of contract is a natu- 
ral concomitant of the private ownership of prop- 
erty and the necessary exchange thereof occa- 
sioned by diversification of industry and the 
wants and desires of men. In a business sense, 
contract may be considered as having its origin 
in the transfer of private property. Even a con- 
tract for services, while not immediately referring 
to property, usually contemplates, in its ultimate 
analysis, ike production of values as the result of 
the services. The parties have in view this fact 
at the time of the agreement. The effect of la- 
bor expended in value produced, or wants satis- 
fied, is the basis of the negotiations. How much 
value or satisfaction will the exertion of muscle 



16 Perry v. Pearson, 135 111., 224, 230. 
l7Gilman v. Andrus, 28 Vt., 241. 



126 DENTAL JURISPRUDENCE 

or brain create, is the question upon which the 
contract depends. 

Equivalence. — The idea of equivalence enters 
into every business transaction. In matters of 
business a man does not part with his right to an 
article which is capable of satisfying some want 
without receiving therefor the satisfaction of 
some desire or some other article equally and 
similarly potent. Therefore, two things of value, 
and only two, are essential to every contract, 
namely (a), the thing given, and (b), the thing 
received. These are called the consideration. In 
the preliminary stage of a contract, the minds of 
the parties weigh and compare these two things. 
When they agree as to the equality of their values, 
the exchange of the right therein is made and the 
contract is complete. This comparison of values 
is a matter entirely for the parties to the contract, 
and when, in the absence of fraud or undue in- 
fluence, they have agreed upon their equivalence, 
the question will not be investigated by legal 
tribunals. Courts will not revise the judgments 
of the parties to a transaction in the matter of 
the equality of the respective considerations. 
The inference is that, on entering into a contract, 
every man intends at least to acquire an equiv- 
alent for what he gives. Where nothing is to be 
received, the inference is that there has been no 
agreement. Courts will not enforce performance 
of a promise for which there has been no consid- 



CONTRACTUAL RELATIONS 127 

eration. This was the case in the civil law, in 
which such an agreement is called a nudum pac- 
tum. In such cases the obligee did not change 
his position and is in no worse situation by rea- 
son of the promise having been made, and, there- 
fore, has no standing in court when he seeks to 
enforce performance of a gratuity. 

Promise for Promise. — One promise is sufficient 
consideration to support another promise. 18 

Benefit or Detriment. — Any benefit to the 
promisor or detriment to the promisee is sufficient 
consideration for a promise. 19 Thus, dental serv- 
ices rendered by A to B or to C, at the request of 
B, are sufficient to support B's promise to pay A 
therefor. The consideration must consist of a 
present act or of a future act promised. The act 
cannot be in the past. 20 

While the acceptance of the services of a den- 
tist raises an implied promise to pay what those 
services are reasonably worth, the mere fact that 
such services are beneficial to the patient does not 
justify such inference; thus it may be of lasting 
benefit to the patient to have had a tooth ex- 
tracted, but the dentist cannot recover for his 
services in performing the extraction, if it was 
done over the objection of the patient. 

Effect of Signing Contract. — Where a party, 
adult, of sound mind and able to read and write, 



18 Bishop v. Busse, 69 111., 403. 

19 Buchanan v. International Bank, 78 111., 500. 

20 Johnson v. Johnson, 31 Pa. St., 450. 



128 DENTAL JUEISPKUDENCE 

and who has had full opportunity to read a con- 
tract, signs it without reading he is bound by its 
terms and provisions, in the absence of fraud or 
other equitable considerations. 21 

Constitutional Right to Contract.— The right to 
enter into contracts is as sacred as life, liberty or 
the pursuit of happiness. The inviolability of 
the obligations growing out of contract, equally 
sacred as the right of contract itself, is a matter of 
supreme moment to industrial prosperity. The en- 
forcement of such obligations is a duty imposed up- 
on legal tribunals wherever government assumes 
to protect the business affairs of men. Impressed 
with the importance of maintaining inviolate the 
right to demand fulfillment of promises according 
to their terms, the framers of the Federal Con- 
stitution provided therein that no State shall pass 
any "law impairing the obligation of contract." 
This obligation may not be impaired by a State 
through its Legislature ; 22 nor by its courts ; 23 
nor by the people of the State. 24 This inhibition 
applies to contracts to which a State is a party, 
and to cases where the contract is in the form of 
a statute, or grant. 25 Both executed and execu- 
tory contracts are included in this constitutional 
provision. 26 



21 Seymour v. Mackay, 126 111., 350. 

22 People v. Canal Trustees, 14 111., 420. 

23 Harmon v. Auditor, 123 111., 122. 

24 Railroad Company v. Hoyt, 1 111. App., 374. 

25 Bruce v. Schuyler, 4 Gilm., 221. 

26 Dartmouth College v. Woodward, 4 Wheat., 51 



CHAPTER XI 
BUSINESS RELATION 

Manufacturer and Buyer. — Where a plate or 
other similar removable article of prosthetic den- 
tistry is the subject matter of the contract, the 
laws relating to the production and delivery of 
other personal property are applicable. The den- 
tist is in the position of a manufacturer or pro- 
ducer, and the patient becomes a buyer or con- 
sumer. 

Delivery. — Since the purpose of the employ- 
ment is the production of an article for personal 
use, delivery of the article in question is essential 
to consummate the transaction, though liability for 
the price may arise when the dentist is ready, able 
and willing to deliver in accordance with the terms 
of the contract. 

Time of Deliveey. — The question of the time of 
delivery may appear in many different forms and 
under many different circumstances. Thus, (1) 
there may be no time for delivery mentioned, or 
(2) the time may be specified and, if specified, (a) 
a day certain may be named, or (b) it may be 
expressed by a period within which, or (c) it may 
be indefinitely characterized, or (d) it may be 
when notified, or (e) to call for. 

129 



130 DENTAL JURISPRUDENCE 

No Time Fixed. — Where no time is fixed for 
completing the work, the law implies that it will 
be done in a reasonable time. The law always 
looks at matters of this kind in the light of rea- 
son and, in the case mentioned, presumes that it 
was within the minds of the parties at the time 
that the work was to be done within a reasonable 
time, having in view all the circumstances of the 
case, known to both parties. 

Specified Date; A Day Certain. — If the con- 
tract stipulates a fixed time for delivery, then 
time is considered of the essence of the contract, 
and if delivery is not made at the time agreed 
upon, the patient is not bound to take the arti- 
cles, and even though accepted, the patient may 
have a right of action to recover any damages ac- 
tually sustained by reason of the delay, though 
the circumstances would have to be extreme and 
the damage certain, to warrant recovery for mere 
delay. Generally speaking, acceptance makes the 
patient liable for the price, and is usually con- 
strued to be a waiver of delay. However, delay 
beyond the date agreed upon, without the consent 
of the patient, puts the burden upon the dentist, 
and, if the patient in good faith insists upon his 
right to rescind the contract, and refuses to take 
the articles, the former will be put to the neces- 
sity of showing that the delay arose from causes 
beyond his control, from the fault of the patient 
or other excusing cause. 



BUSINESS RELATION 131 

Delivery Within a Certain Period. — Where the 
work is to be furnished between certain specified 
dates, as between the 15th and 20th of the month, 
the practitioner has until the last date mentioned 
in which to perform. 27 

Indefinite Time. — (a) Next Month. — An agree- 
ment to complete work during "next month" 
gives the operator all the calendar month follow- 
ing the calendar month in which the promise was 
made, and delivery on the last day of said month 
would be a compliance with the promise, while an 
agreement to furnish "within a month" would be 
construed to mean within thirty or thirty-one 
days from the date of promise, and the operator 
would have until the corresponding day, less one, 
of the following month to complete his work. 
Agreement to furnish during "first half of next 
month" would give the practitioner all of the 15th 
day of the succeeding month, if it had thirty days, 
and until noon of the 16th, if 31 days. 28 

At Once. — An agreement to supply an article at 
once will be construed by the courts to mean with- 
in a reasonable time ; but it admits of no delay, 
under the circumstances. 29 

Shortly. — Where the articles are to be supplied 
"shortly," the law applies the same rule of rea- 
sonableness, as it indicates that the party mak- 
ing the promise did not mean to fix an exact time 



27 Harman v. W. Fuel Co., 228 111., 298. 

28 Grosvenor v. Magil, 37 HI., 239. 

29 Tuft v. McClure, 40 la., 317. 



132 DENTAL JURISPRUDENCE 

within which to perform, and is given such lati- 
tude as will be reasonable under the circum- 
stances. 

When Notified. — Where the dentist agrees to 
notify the patient when the work is done, the 
patient cannot be in default until after such no- 
tice is given. In the absence of special agreement 
as to character of notice, any means by which the 
fact that the work is completed is brought to the 
knowledge of the patient by the dentist will be 
sufficient. The burden is upon the dentist to show 
actual notice, or circumstances which will excuse 
the same; such as, departure by the patient to 
parts unknown and failure to notify the dentist 
for an unreasonable length of time. In such 
event, the latter should take the precaution to 
mail a notice, postage fully prepaid, to the pa- 
tient's last known, or last given, post-office ad- 
dress, in order to forestall any claim on the part 
of the patient, when found, that he understood he 
was to be communicated with in that manner. 
"Where there has been some special means of com- 
munication between the parties, such as, by a mu- 
tual friend, that method of sending notice should 
be adopted in any event, if practical, and such 
others as the circumstances will permit or as ap- 
pear reasonable. 

Call For. — Where the patient agrees to call 
for plates at a fixed time, the dentist will have 
complied with his contract if he is then able, ready 



BUSINESS RELATION 133 

and willing to deliver upon performance by the 
former. An agreement to call for the article 
without specifying the time requires the patient 
to act within a reasonable time under the circum- 
stances, and any damage resulting from his fail- 
ure or default in this respect must be borne by 
him. In order to avoid misunderstanding, how- 
ever, and, possibly, to charge the patient with 
knowledge of what is a reasonable time, the prac- 
titioner should notify the patient that his work 
is ready. In all these matters the latter should 
be ready to do more than the law requires as he 
may thereby avoid unpleasant situations and pos- 
sibly litigation. 

Conditional Delivery. — If a plate is delivered 
to a patient for the purpose of trying it out, with 
instructions to return it for further fitting, the 
delivery would not be final, and should the pa- 
tient return and give the plate into the possession 
of the dentist in accordance with that understand- 
ing, the latter may refuse to give the plate to the 
patient until he has been paid for same, unless 
there was a specific agreement inconsistent with 
such position. The contract is executory and no 
title passes to the patient until the article is com- 
pleted and delivered with the intention of mak- 
ing it the property of the patient. 

Place op Delivery. — If the patient comes to 
the office of the dentist for treatment and the 
taking of impressions, and nothing is stated as to 



134 dental' jurispkudence 

where the plates are to be delivered, there would 
be an implication that the place of delivery is the 
dentist's office, while in the case of the itinerant 
dentist, who goes to the patient's abode, there 
would be an implication that the plates were to 
be delivered at the patient's residence, in the ab- 
sence of an express agreement with reference to 
the matter. If the agreement is merely to have 
the work ready at a certain time without mention- 
ing the place of delivery, and if all the work has 
been done and the negotiations had at the office 
of the practitioner, the place of delivery would 
undoubtedly be at the office and, under such cir- 
cumstances, in any event, a notice that the plates 
are ready at the office to be delivered when called 
for, will be sufficient compliance with the contract. 
Generally speaking, in mercantile affairs, where 
no place is designated, and there is no custom of 
trade in the premises, the place where the goods 
are located or produced is usually regarded as 
the place of delivery. 

Effect of Delivery. — Ordinarily the patient has 
no title in a plate or similar article until it is 
delivered to him, even though payment was made 
in advance, but the unconditional delivery of a 
completed article to a patient, when not induced 
by his fraud, or circumvention, or by legal mis- 
take, invests the title thereto absolutely in the pa- 
tient. The dentist has no claim or hen upon it 
for the satisfaction of his fee and, should it again 



BUSINESS RELATION 



135 



come into his possession, lie cannot retain it for 
the purpose of enforcing payment. If delivery 
was brought about by the fraud of the patient he 
acquires no title to the article, and if the dentist 
can repossess himself of the same, he holds it with 
all his rights to its detention as though he had 
never in fact parted with the actual possession. 
Where the work is placed in the patient's pos- 
session on certain conditions, title will not pass 
until the conditions are complied with. If, after 
time for delivery, and offer in pursuance there- 
of, the article is destroyed or lost, without the 
fault of the practitioner, the patient must bear 
the burden of the loss, — he will still be liable for 
the price. However, if anything remained to be 
done upon the article, the loss would fall upon the 
practitioner. 

To Whom Delivery May be Made. — In prac- 
tice, the patient generally calls at the office for a 
plate or other detachable work, but an order by 
a patient to deliver to some other person, or to 
send by mail or express, will be sufficient author- 
ity to the practitioner for pursuing the desig- 
nated course, and delivery to the person specified, 
or depositing in the mail or express, properly ad- 
dressed, with postage or expressage prepaid, will 
meet the requirements of law and the patient will 
be liable for the price though the article never 
reaches its destination. 

Payment. — If nothing was said by the parties 



136 DENTAL JURISPRUDENCE 

as to the time of payment, the law presumes that 
payment was to be made on delivery. When pay- 
ment is to be made at the time of delivery of the 
work, the offer to deliver may be conditional on 
payment, and such offer will meet the require- 
ments of the law. An offer to deliver upon pay- 
ment will be a sufficient compliance with the con- 
tract to establish the liability of the patient. If 
payment was to be at a fixed time, not arrived at, 
or at a stated time after delivery, the offer to 
deliver must be unconditional as to payment, and, 
if made conditional thereon, it is not an offer. 
The offer to deliver must be in conformity with 
the contract as to time, manner, place and cir- 
cumstances. A dentist, however, may do more 
than his contract requires and still be within the 
spirit and terms thereof. Thus, where plates 
were to be delivered at his office at a specified 
time, and the patient neglected to call at the time, 
he may tender them at the residence of the pa- 
tient and thus fix the patient's liability. 

Default in Delivery. — Whether the delay in de- 
livery according to agreement is a breach of 
the contract, depends upon the circumstances. 
Where the failure to deliver was the fault of the 
patient, the practitioner may insist on fulfilling 
the contract within a reasonable time after the 
agreed date, taking into consideration the pa- 
tient's conduct which occasioned the delay. Thus, 
conversely, the patient will not be permitted to 



BUSINESS RELATION 137 

take advantage of a delay occasioned by his own 
fault, neglect or refusal to keep appointments, or 
by conduct evincing a desire to avoid the contract 
and elude the responsibility of its performance. 
"Where the default is due to the dentist's fault the 
patient may refuse to accept. 

Acceptance. — Delivery and acceptance are re- 
ciprocal duties. The use of a plate by a patient 
does not necessarily denote acceptance, if it is 
done for the purpose of testing its fitness, or 
while the practitioner is trying to remedy de- 
fects or make a fit. 30 Of course, the patient may 
accept the work at any time, either before or after 
the specified time of delivery, or even after an 
unreasonable delay, and, on acceptance, he be- 
comes liable for the price and, possibly, waives 
any claim for damages by reason of the default. 
A patient cannot escape liability by merely refus- 
ing to accept. Eefusal, to be availing, must be 
justified in law. 

On Trial. — If work of a prosthetic detachable 
nature, such as a plate, is furnished on trial, the 
patient may accept or reject according to the 
terms of the special contract, but if he retains 
the plate for an unreasonable length of time with- 
out making any objection, his conduct may be such 
as to justify an inference that he has accepted 
the work and, in that event, he will not be heard 
to complain when he is called upon to pay for the 



Crabtree v. Potts, 108 111. App., 627. 



138 DENTAL. JURISPRUDENCE 

same. If delivery was unconditional, title passes 
to the patient on acceptance. 

Seasonable Time. — What is a reasonable time 
within the meaning of the law, for performing any 
act, or discharging any duty or obligation, must 
be determined from a consideration of all the 
facts and circumstances of each particular case, 
as well as of the subject matter to which it refers. 

Reasonable Opportunity. — The patient must 
give the dentist a reasonable opportunity to do 
the work properly and he must submit to reason- 
able fittings and other necessary steps in the 
progress of the work, and if he fails or refuses 
so to do, he may be held liable for the agreed 
price, or where no price has been agreed upon, 
then for the reasonable value of the services as 
measured by the detriment to the practitioner, 
which will usually be the value of his time and 
material. If, with reasonable time and opportu- 
nity afforded him, the dentist fails to make a rea- 
sonable fit in the case of a plate, the patient may 
quit him without incurring any liability for labor, 
and material in respect to the same, but his lia- 
bility for services in preparing the mouth by ex- 
tracting teeth and treating gums and teeth, will 
depend upon other facts which may or may not be 
affected by or related to the preparation of the 
plate. 

Specified Material. — An agreement to furnish a 
plate or other article of a given material, is not 



BUSINESS RELATION 139 

complied with by offering or supplying a plate 
entirely different. In such case the patient may 
elect to take or entirely refuse the substitute. If 
he retains the substitute for an unreasonable 
length of time after knowledge, or after he should 
have known that it was not what he had contracted 
for, he will be presumed to have accepted it and 
must pay what it is reasonably worth ; but, in the 
absence of specific notice and consent, he will prob- 
ably not be liable for an amount in excess of the 
original contract price. 

Quality, Workmanship, etc. — Where nothing is 
said about the quality of the material to be used, 
or the workmanship to be displayed, no particular 
quality of workmanship will be implied, and, while 
the highest quality and best workmanship cannot 
be exacted, still the obligation will not be met by 
furnishing the poorest. "What will be required 
under such circumstances is fair, average, ordi- 
nary quality and workmanship. 31 If there is a 
specific agreement as to these attributes the ar- 
ticle must be in substantial compliance therewith, 
and any material departure therefrom will excuse 
the patient for refusing to take the same. What- 
ever the agreement as to quality and workman- 
ship, and however cheap the price to be paid, a 
plate which does not reasonably fit the patient's 
mouth, and which, for that reason, is useless to 
him for the purpose for which it was intended, 



31 Simonds v. Henry, 39 Me., 155; Wilson v. Lawrence, 139 Mass., 318. 



140 DENTAL JURISPRUDENCE 

cannot be considered to be a compliance with the 
general contract to make a plate as a substitute 
for dentures which are gone. He is justified in 
refusing to accept such article. 

Defects. — Any defects, latent or patent, must be 
made good by the practitioner, unless it is ex- 
pressly understood that the practitioner is not 
to do the prosthetic work in person, or by his as- 
sistants, but that he is to have the same done by 
a commercial laboratory, in which latter event he 
will be liable only for patent defects discoverable 
by ordinary inspection by an experienced and 
skilled person. 32 

Rescission. — An order by a patient for such ar- 
ticles as dental plates, may be arbitrarily re- 
scinded by him at any time. In such case the den- 
tist may recover the damages he sustained by the 
rescission as of that time, measured by the rea- 
sonable value of his services and materials. His 
right to sue accrues at the moment of the rescis- 
sion. He cannot complete the work and then re- 
cover for services rendered or materials fur- 
nished after notice of abrogation. If the patient 
dies before the time for delivery and the work is 
completed at the time of death, or at the time the 
dentist hears of the death, he may recover the 
contract price though the plates were in fact never 
delivered. However, if he learns of the death be- 
fore the work is completed, he should cease at 



82Archdale v. Moore, 19 111., 565. 



BUSINESS EELATION" 141 

once, since his recovery would be limited to the 
value of the services rendered and material con- 
sumed at the time he received the information. 33 

Sensitiveness of Patient. — It frequently occurs 
that patients experience great inconvenience in 
learning to wear a plate and, in the absence of a 
specific agreement to the contrary, the dentist's 
obligation does not go to the extent of insuring 
his patient against such trouble, as his duty ends 
when he produces a reasonably fair, good-fitting, 
workmanlike article. 

Work to the Satisfaction of the Patient. — Gen- 
erally speaking, an agreement to do work for an- 
other, to his satisfaction, means to do such work 
as he ought, in good faith, to be satisfied with. 
Where a practitioner agrees to do work which 
will suit his patient, the patient cannot avoid re- 
sponsibility by captious objections, unfounded 
complaints, trifling defects not going to the real 
merits of the case, or dishonest design with a view 
of avoiding liability. In law, a man is satisfied 
where, in good faith, he ought to be satisfied. 34 
Since the object of the trans-action, however, is 
known to the practitioner to be the supplying of 
a personal convenience, the gratifying of a per- 
sonal taste, bias or sensibility, or the satisfying 
of a personal preference, the burden is upon him 
to show that the objections are, in fact, not of- 



33 2 Meacham, Sales, Sec. 1091 and 1092. 
34Keeler v. Clifford, 165 111., 544, 548. 



142 DENTAL JURISPRUDENCE 

fered in good faith. In all such, or similar, cases 
the law requires the patient to act in perfect good 
faith and exercise an honest, unselfish judgment. 35 



35 Baltimore v. Brydon, 65 Md„ 198. 



CHAPTEE XII 
MISCELLANEOUS SUBJECTS 

Goods, Wares and Merchandise. — In 1678, in 
the 29th year of the reign of Charles II of Eng- 
land, there was passed by the British Parliament 
a statute entitled "An Act for the Prevention of 
Frauds and Perjury." The 17th Section of 
Chapter 3 of said Act runs as follows : 

"No contract for the sale of goods, wares and 
merchandise for the price of £10 Sterling and up- 
wards, shall be allowed to be good except the 
buyer shall accept part of the goods so sold and 
actually receive the same, or give something in 
earnest to bind the bargain, or in part payment, 
or that some note or memorandum in writing of 
the said bargain be made and signed by the par- 
ties to be charged by such contract or their agents 
thereunto authorized." 

Statutes, which are substantial copies of the 
foregoing, are in force in some of the states. 
The law applies to such contracts only as relate 
to goods* wares or merchandise. Ordinarily pro- 
fessional or other services do not come within the 
purview of the law. Where work and labor are 
the subject matter of the transaction the law is 

143 



144 DENTAL JURISPRUDENCE 

not operative. The determination of whether or 
not a contract is for work and labor performed 
or for goods, wares or merchandise, has been at- 
tended with much discussion and difficulty. It is 
not always self-evident into which of these two 
categories the subject matter of the contract falls. 
When, at the time of making the bargain, the par- 
ties contemplate the ultimate delivery of a chat- 
tel, the contract is considered as being for goods, 
wares and merchandise, within the meaning of 
the statute. In an English case, a lady ordered 
of a dentist a set of artificial teeth which, by the 
terms of the agreement, were to be fitted to her 
mouth at a price in excess of £10 Sterling, but 
before they were so fitted she died. The den- 
tist brought an action against her executor for 
work and labor performed and material furnished, 
but the court held that the contract was for goods, 
wares and merchandise, came within the statute 
and, not being in compliance therewith, no recov- 
ery could be had upon it. 1 The basis of this de- 
cision was the idea that the plates were distinct 
pieces of property and properly came under the 
designation, — goods, wares and merchandise. 
Had the work been the treatment or filling of 
a tooth there is no doubt that the decision would 
have been the reverse, as such relation would 
clearly be one of professional services. It would 



l Lee v. Griffin, 1 E. B. 



MISCELLANEOUS SUBJECTS 145 

appear also that if the object of the services had 
been the crowning of a root or the bridging of 
an interdental space by means of a fixed bridge, 
since the completed work could not be said to be 
the delivery of a separate and distinct article, the 
contract should be considered one for professional 
services. An article which is made a fixed part 
of the person, and which must be so fixed to the 
person before the contract is completely executed, 
cannot be considered as a contract for the deliv- 
ery of a chattel, but rather the repairing of a part 
of the human mechanism. The delivery would 
not be complete until the attachment was made 
and, in such case, a delivery would really involve 
a delivery of the patient himself, and the law can- 
not possibly contemplate any such interpretation 
of the contract. It would appear that the only 
services rendered by a dentist, in which the par- 
ties may be said to contemplate the ultimate de- 
livery of an article of personal property, is in the 
case of removable plates involving either partial 
or complete denture. In states where the law is 
in force, the dentist making plates for a patient, 
at a price which brings the contract within the 
law, must see that all legal requirements are com- 
plied with, otherwise he may find himself with a 
useless plate on his hands and no remedy against 
the patient. 
As a general proposition, a contract which is 



146 DENTAL JURISPRUDENCE 

valid at the place where it is executed, is valid any 
place in the world. 2 

Guaranty. — If the work be done for a person 
on the guaranty by another that the services will 
be paid for by the guarantor, if needs be, the 
guaranty should be in writing ; but if the services 
be rendered upon an unconditional promise of 
a third person to pay for them, the promise need 
not be in writing, but the credit should be given 
to the promisor, and not to the party for whom 
the services were rendered. The test is, Was the 
whole credit given to the third person? If the 
undertaking of a person who agrees to answer 
for another is collateral or conditional, it must 
be in writing, but if direct and original it need 
not be. 3 Where the guaranty is in writing the 
account may be kept in the name of the patient; 
but if the third person is to be held as an original 
obligor, the account should be entered in his 
name. Doing the work at his request is sufficient 
consideration for his promise to pay whether di- 
rect or collateral, regardless of his relation to 
the beneficiary of the services. In other words, 
the consideration for a promise may be either a 
benefit to the promisor, or a detriment to the 
promisee. 4 Courts will not enforce promises for 



2 Pecks v. Mayo, 14 Vt., 33 ; Roundtree v. Baker, 52 111., 241 ; 9 Cyc, 
672. 

3 Smith v. Hyde, 19 Vt., 54. 

i Morgan v. Park National Bank, 44 111. App., 582. 



MISCELLANEOUS SUBJECTS 147 

which there has been no consideration. Such 
promises are imperfect obligations and are called 
naked promises. Where a person called at the 
office of a physician in a hotel and, on being in- 
formed that the physician was out, wrote on a 
card, having his own name and address printed 
thereon, the words "Call on Mrs. Day at No. 769 
Broadway" and handed it to the hotel clerk with 
the request to give it to the physician and tell him 
to go as soon as possible, and, where it did not 
appear that credit was originally given to the pa- 
tient, and where a jury found for the physician 
under all the circumstances, the court held that 
such person became liable to pay for the physi- 
cian's attendance and services upon Mrs. Day. 5 
It must appear from the evidence that the physi- 
cian understood that the party calling him was 
to be responsible and this understanding must 
have been either by direct statement or reason- 
ably deduced from all the evidence and circum- 
stances in the case, and it must also appear that 
the physician extended the credit in the first in- 
stance to the third person. 6 

Receipt. — A receipt in writing is not conclusive, 
but is open to explanation, correction or contra- 
diction by oral testimony or other evidence. It 
is regarded as evidence of a high character and, 



5 Bradley v. Dodge, 45 How. Pr., 57; Clark v. "Watterman, 7 Vt., 76, 

6 Starrett v. Miley, 79 111. App., 658. 



148 DENTAL JURISPRUDENCE 

to overcome it, the evidence should be clear and 
convincing. 7 A receipt in full of a liquidated 
claim is not conclusive evidence of payment in full, 
and is subject to contradiction and explanation. 
In the absence of other proof it establishes pay- 
ment in full. 8 Payment, in part, of an undisputed 
claim, which is due, is no consideration for an 
agreement that the payment shall be in full, be- 
cause the debtor has done only what he was legally 
bound to do, and, after such partial payment, the 
creditor may proceed to collect the balance, but a 
partial payment before due may be a sufficient 
consideration for an agreement to release the 
balance. 9 

The compromise and settlement, for any reason- 
able consideration, of a doubtful or speculative 
claim, is a sufficient consideration when made with 
knowledge and without fraud, and receipt in full, 
in connection with such compromise, is binding 
on the party giving it. A receipt in full for an 
unliquidated or honestly disputed claim, accepted 
in good faith and obtained without fraud, is bind- 
ing on the party who issues it. Thus, where a 
dentist has no agreement as to his charge for 



7 Walrath v. Norton, 5 Gilm., 437; Cunningham v. Baars, 36 Minn., 
350, 353 ; Winchester v. Grosvenor, 44 111., 425 ; Rockford R. Co. v. Rose, 
72 111., 183. 

8 Lyons v. Williams, 15 111. App., 27; Neal v. Handley, 116 111., 421. 
9Wolford v. Powers, 85 Ind., 294, 304; Smith v. Bartholomew, 1 

Mete. (Mass.) 276; Smith v. Phillips, 77 Va., 548; Shepard v. Rhodes, 
7 R. I., 470. 



MISCELLANEOUS SUBJECTS 149 

services, his claim would be said to be unliqui- 
dated, and if the patient honestly and in good 
faith misunderstood the terms and conditions, or 
honestly disputed the value of the services, the 
acceptance of a payment and the giving of a re- 
ceipt in full, as a condition thereof, would be 
binding on the dentist. A written instrument 
which operates both as a contract and a receipt, 
may be enforced as a contract and be corrected 
or contradicted as a receipt. 10 

Release. — A release is a quittance, remission or 
discharge of a right of action. It is a unilateral 
contract. As, in the case of all other contracts, a 
release must be supported by a consideration. 
The agreement may be oral but it is advisable to 
reduce the same to writing and have it executed 
under seal. In fact, the term release implies a 
writing under seal. 11 At common law a seal im- 
ports consideration and obviates the necessity of 
introducing any other evidence of that fact. A 
written release, like any other written contract, 
cannot be contradicted, varied or modified by parol 
evidence. A receipt is not a contract, it is only 
an admission of payment and may be contradicted, 
modified or impeached. 12 A receipt is merely evi- 
dence of the fact of payment, while a release 
extinguishes a preexisting right; and, while a re- 



10 Hossack v. Moody, 39 111. App., 17. 

ill. C. R. R. Co. v. Read, 37 111., 484, 511. 

l2GiUett v. Wiley, 126 111., 310. 



150 DENTAL JURISPRUDENCE 

ceipt in full may be explained or modified or con- 
tradicted, a release, nnder seal, forever estops and 
concludes the party. 13 



i3Frink v. Bolton, 15 111., 343; Crane v. Ailing, 15 N. J. L., 423: 
Equitable Security Co. v, Talbert, 49 La. Ann., 1393. 



CHAPTER XIII 
ADMINISTRATIVE LAW 

Courts. — A court is a judicial tribunal consti- 
tuted by the supreme power in the State to in- 
terpret and apply its laws, and to enforce certain 
rights and redress certain wrongs. The entire 
force of the Nation is behind the court to enforce 
its mandates. 

Jurisdiction. — Definition. — Jurisdiction is the 
power or right to hear and determine. The right 
must extend to the subject-matter of the contro- 
versy, and to the person of the litigants. A 
court derives jurisdiction of the subject-matter, 
expressly or impliedly, from the authority which 
creates it, while jurisdiction of the person is ac- 
quired by notice in accordance with the provi- 
sions of law. 

Notice. — Wherever there are courts, some form 
of notice to the party to be affected, is indispen- 
sable to the right of the court to proceed against 
him. Notice, in time for a reasonable opportu- 
nity to be heard, is inherent in human ideas of 
justice. In civil matters the actual presence of 
the defendant is not essential to the power of the 
court to proceed, when it appears that the party 

151 



152 DENTAL JURISPRUDENCE 

has been given due notice under the law. Under 
certain circumstances courts may proceed against 
property which is within its territorial jurisdic- 
tion, even though it cannot reach the owner per- 
sonally by its process. 

Effect of Judgments. — When a court has juris- 
diction, its orders and judgments are binding upon 
all parties to the suit, and their privies, and its 
decision is binding on the parties in all subsequent 
litigation involving the same points. On the 
other hand, if it does not have jurisdiction its 
decrees are an absolute nullity and are binding 
upon no one, not even the parties to the suit nor 
itself. 

Procedure. — It is necessary for a court to pro- 
ceed in accordance with established usage or 
prescribed rules. Procedure in court is a develop- 
ment, and originated in customs. Courts must 
follow the established mode of procedure. 
Wherever English jurisprudence prevails, the in- 
terrogating lawyer can determine in a large meas- 
ure the course of testimony. The witness may 
be confined to categorical answers to specific ques- 
tions propounded to him. He may even be re- 
quired to answer a specific question by either 
"yes" or "no," and if he says he cannot so 
answer, his testimony thereon may be limited to 
that admission. 

Purpose of Eules. — The object of rules of pro- 
cedure, including introduction of evidence, is to 



ADMINISTKATIVE LAW 153 

enable the court to control the character of evi- 
dence introduced and confine it to the point at 
issue. All answers to direct interrogatories must 
be responsive to their respective questions, and 
confined to the purview of the questions to which 
they respond. Any answer or part of answer 
which does not meet these requirements will be 
stricken from the record, on motion. This is in 
striking contrast with some Continental systems 
of jurisprudence. In certain actions in some Con- 
tinental jurisdictions, it appears that the witness 
is permitted to harangue the court and jury with- 
out any right or power on the part of counsel to 
interfere with his tirade. He may comment upon 
the effect of testimony, may boast of the promi- 
nence of himself and the importance of his state- 
ments and conclusions, may give his opinion on the 
guilt of the accused, may berate the defendant 
from the witness chair and even refer to matters 
of hearsay several persons removed. 

Hearsay. — An important rule of evidence in the 
jurisprudence of English-speaking people is the 
exclusion of hearsay testimony. It comes clothed 
in too much uncertainty to give it any weight and, 
except in rare cases, it is not admissible for any 
purpose. Our law indulges no presumption or 
inference of the truth of a fact in issue merely 
because a witness states that someone, not before 
the court, asserted its existence, directly or in- 
directly, to the witness. Ordinarily, if the party 



154 DENTAL JUKISPRUDENCE 

is not before the court where he can be put under 
oath and cross-examined, and the source of his 
information inquired into, his statements will be 
excluded. 1 

Statements of Patient: — The statements of a 
patient relative to his condition, made in good 
faith, to his dentist or physician for the purpose 
of professional treatment of such condition, are 
not hearsay if they later become relevant to the 
issue of a suit in court. Even though such state- 
ments are favorable to the contention of the pa- 
tient in the suit to which he is a party, the prac- 
titioner may testify thereto and repeat them from 
the witness stand. 2 

Evidence. — Evidence is that which demon- 
strates, tends to establish or make clear or certain 
the truth or falsity of a fact in issue. It is any 
matter of fact, the effect, tendency or design of 
which is to produce in the mind a persuasion, af- 
firmative or negative, of the existence of some 
other matter of fact, and includes all the means, 
whether of fact or opinion, by which an alleged 
fact, the truth of which is submitted for investi- 
gation, is established or disproved. 

Opinion Evidence. — Opinion evidence is testi- 
mony in the form of an opinion based upon facts 
proved or assumed, concerning a matter involv- 
ing scientific or technical knowledge not within the 



1 Grubey v. National Bank, 133 111., 79; Kent v. Mason, 79 111., 540. 

2 37 L. R. A. (0. S.) 199; Railroad Co. v. Carr, 170 111., 478; 
Wigmore Ev., 2208. 



ADMINISTRATIVE LAW 155 

experience of the ordinary witness.. 3 The law 
does not look with favor upon the introduction of 
opinion evidence. As a rule, witnesses are re- 
quired to testify to facts directly within their 
knowledge ; it is for the court or the jury to draw 
conclusions and form opinions from the facts thus 
brought before them. 

Testimony. — Testimony is the statement or 
declaration of a witness before a court for the 
purpose of establishing or refuting some fact in 
issue. It is a branch of evidence and is the means 
by which certain facts, within the knowledge of 
persons, are brought before the court when the 
same are material to the issues in the case. 

Witnesses. — A witness is one who gives testi- 
mony in a case before a court, and includes every 
person from whom testimony is received to be 
used in a judicial proceeding. 4 All testimony 
must be given either on (a) oath or (b) affirma- 
tion. Generally speaking, a witness may testify 
only to facts, circumstances and conditions which 
have been brought to his knowledge by means of 
one or more of the senses, but he may not state 
inferences or conclusions drawn by him from 
such observations or from admitted facts. 

Opinions of Ordinary Witnesses. — In actual 
practice, however, there are a great variety of 
subjects in which ordinary testimony savors of 



3W. C. R. Co. v. JP'ischmann, 169 111., 196. 

4 Baker v. Coit, 1 Root, 225; Bliss v. Scheman, 47 Me., 252. 



156 DENTAL JURISPRUDENCE 

opinion evidence. Thus, an ordinary witness may 
state his opinion (1) concerning the age of a per- 
son whom he has seen; (2) on matters of color, 
size, weight, quantity, value, distance, speed, time, 
etc.; (3) relative to the identity of persons, places 
or things; (4) whether a person appeared angry, 
sad, nervous, excited, sick, in poor health, well, 
ill, attached to another, sober or intoxicated; (5) 
whether a person appeared to be suffering pain, 
showed fear, manifested grief, was formerly in 
good health, was rational or irrational, sane or in- 
sane, had failed mentally in a given time, looked 
bad, was of intemperate habits, acted strangely 
or in a childish manner, was " short" in answering 
questions, eccentric, or of a fickle mind; (6) 
whether the mind of a person was clear, etc. Such 
evidence has been said to be competent from neces- 
sity, on the same ground as the testimony of an 
expert, as being the only method of proving cer- 
tain facts essential to the proper administration 
of justice ; nor is it a mere opinion which is thus 
given by the witness, but a conclusion of fact to 
which his judgment, observation and common 
knowledge have led him, in regard to a subject- 
matter which requires no special learning or ex- 
perience, and which is within the knowledge of 
men in general. 5 

Weight of Such Opinions. — The confidence to 
which such opinion is entitled depends upon the 



5 Com. v. Sturtevant, 117 Mass., 122. 



ADMINISTEATIVE LAW 157 

character of the examination made by the wit- 
ness, the nature of the subject-matter to which it 
refers, and the intelligence and good faith of the 
witness. 6 

Eeasons foe Admission. — These exceptions to 
the general rule that ordinary witnesses can tes- 
tify only to facts which come to their knowledge 
through some of the senses, are made to promote 
justice and are founded upon necessity. Circum- 
stances there are in which, because of the im- 
perfection and limitations of language and the 
instability of mental impressions, the witness can 
express a condition or state of facts more clearly 
by giving his inferences at the time, from the im- 
pressions made on his mind, than by attempting a 
detailed enumeration of those impressions. Often 
facts of personal observation, especially of con- 
versations, are remembered only by the mental 
conclusions which they produce at the time. Thus, 
it may be difficult or even impossible, to describe 
in detail a person's condition or conduct at a given 
time, when the observer may disclose the key to 
the whole matter by merely stating his own im- 
pression at the time ; such as, that the person was 
angry, or excited, or intoxicated, or sad, etc. 

Test of Admissibility. — Whenever the condi- 
tion sought to be established is such that it cannot 
be reproduced and made palpable in the concrete 
to the court or jury, or when language is inade- 



e Hopt. v. Utah, 120 U. S., 437. 



158 DENTAL JURISPRUDENCE 

quate to make the court or jury see it and know 
it as the witness saw it and knew it, then the or- 
dinary witness may describe the condition by its 
effect upon his own mind at the time, even though 
such method savors of an opinion. 7 

Subject-matter of Expert Testimony.— Limita- 
tions. — The test of the admissibility of expert 
testimony is, — Is the question upon which the evi- 
dence is offered, one of science, skill or special 
experience or occupation? The subject must be 
one which the courts recognize, as a matter of 
judicial notice, as being a matter of special study, 
experience or occupation, either for professional 
or other purposes, and it must relate to some 
particular department of human knowledge or 
activity. The subjects to which this kind of evi- 
dence is applicable are not necessarily confined to 
classified and specific professions. It is appli- 
cable wherever particular skill, experience and 
judgment, applied to particular subjects, are re- 
quired to explain results or trace them to their 
causes, and in which, as a matter of business, 
recreation or study, there are persons who are 
specially informed. 

Technical Information. — The opinion of a wit- 
ness is not evidence for the jury or court, except 
where the question is one of science or skill, or 
has reference to some subject upon which the 
court or jury is supposed not to have the same de- 



7Whittier v. Franklin, 46 N. H., 23; Knoll v. State, 55 Wis., 249. 



ADMINISTRATIVE LAW 



159 



gree or means of knowledge as the witness. The 
general rule as to the admissibility of expert evi- 
dence is that persons having technical and peculiar 
knowledge on certain subjects are allowed to give 
their opinions when the question involved is such 
that the jurors are incompetent to draw their con- 
clusions from the facts without the aid of such 
evidence. 

Common Knowledge. — A witness is not per- 
mitted to give his opinion as an expert in refer- 
ence to a matter which does not involve a question 
of science, skill or occupation ; and where the mat- 
ter inquired about requires no special knowledge, 
skill or experience and may be determined by the 
jury upon a sufficient description of the facts, it 
is not proper to receive the testimony of experts. 
Thus, the question of whether the smoothness and 
slipperiness of glass make it unsuitable for side- 
walk purposes, is not a question of science or 
skill, and the opinions of architects or other spe- 
cialists are not admissible. It is a subject equally 
within the knowledge of all men. The opinions 
of witnesses should not be received as evidence 
when all the facts upon which said opinions are 
founded can be ascertained and made intelligible 
to the court or jury, and where the information 
may be said to be equally within the experience 
of all men irrespective of study or occupation. 8 

When the subject of a proposed inquiry is a 



8 Chicago v. McGiven, 78 111., 347, 349. 



160 DENTAL JURISPRUDENCE 

matter of common observation upon which the 
ordinary mind is capable of forming a judgment, 
or is one which the law does not recognize as 
being made a matter of particular study or occu- 
pation, an expert may not express an opinion or 
draw conclusions either from facts testified to 
by him or in response to hypothetical ques- 
tions. 

Expert Confined to Special Subject. — When 
testifying he must be strictly confined to the limits 
of the special knowledge of his profession or occu- 
pation. 9 

In a prosecution for practicing dentistry with- 
out a license, the question as to whether the doing 
of certain specified acts amounts to the practice 
of dentistry is not a matter of expert testimony. 10 

Expert Witnesses. — Definition. — An expert 
witness is one who has made the subject upon 
which he gives his opinion, a matter of particular 
study, practice or observation, and who has a 
particular knowledge on the subject which must 
be recognized in law as a distinct department of 
human knowledge and endeavor. An expert is 
one who, in regard to a particular subject or de- 
partment of human activity, possesses knowledge 
not possessed by ordinary persons. 11 An expert 
is a person instructed by a specially acquired in- 
formation, knowledge and experience upon sub- 



9 Page v. Parker, 40 N. H., 47. 

10 People v. Lehr, 196 111., 361. 

uSiebert v. People, 145 111., 571; Jones v. Tucker, 41 N. H., 546. 



ADMINISTRATIVE LAW 161 

jects presumably not within the range of ordinary 
intelligence and observation. 12 

Qualifications. — A mere casual observation, 
or desultory and superficial reading on a subject 
will not constitute one an expert therein; while, 
on the other hand, it is not required that the party 
offered as an expert shall possess the highest de- 
gree of knowledge and skill in the matter about 
which he assumes to express an opinion, nor that 
he should, at the time he testifies, be actively en- 
gaged in the occupation or profession within 
whose province the subject-matter of his testimony 
is comprised. 13 

Preliminary Inquiry as to Qualification. — 
Whether a person who has been called as an ex- 
pert has the requisite qualifications in the partic- 
ular subject-matter involved to enable him to tes- 
tify as an expert, is a preliminary question to be 
determined by the court, and the decision of the 
court is conclusive, unless it appears from the evi- 
dence to be clearly erroneous or to have been 
founded upon some error in law. 14 After a wit- 
ness has been permitted to testify as an expert, 
the weight and effect of his testimony is a question 
exclusively for the jury, and is entitled to such 
weight and consideration as his skill and expe- 
rience in the special subject of inquiry justify. 15 



12 Page v. Parker, 40 N. H., 47, 59; Hyde v. Wo'olfolk, 1 la., 167. 

13 Mason v. Puller, 45 Vt., 29 ; Welde v. Welde, 2 Lee Ecc, 578. 

14 Parkins v. Stickney, 132 Mass., 218; Congress Co. v. Edgar, 99 U. S., 
657. 

15 Davis v. State, 35 Ind., 496; U. S. v. Prendergast, 32 Fed., 198. 



162 DENTAL JURISPRUDENCE 

In determining the weight to be given to the tes- 
timony of an expert, it is proper for the jury to 
take into consideration the fact that he was spe- 
cially compensated by the party in whose favor he 
testified. 16 

Conduct. — The expert witness should endeavor 
to make his statements clear and intelligible to the 
ordinary listener. He must not forget that he is 
called upon to testify because the subject is not 
within the field of knowledge of the person to 
whom his testimony is directed and for whose 
benefit he is called as a witness. He should avoid 
as much as possible the use of technical terms 
and language suggestive of pedantry, subterfuge 
or display. He should shun even the suggestion of 
advertising himself or parading his accomplish- 
ments and speak with becoming modesty on all 
matters pertaining to his qualifications, expe- 
rience and achievements. . Able testimony may lose 
its convincing force by being preceded and intro- 
duced by a spirit of braggadocio. It is important 
to the expert to be familiar with rules and prac- 
tices of courts relating to the examination of wit- 
nesses, as it may save conflict with the attor- 
neys and, possibly, even reprimand from the 
judge. 

Basis of Opinion. — An expert may base his opin- 
ion upon information (a) obtained by his own 



16 Ware v. Starkey, 80 Va., 204. 



ADMINISTEATIVE LAW 163 

examination of the party and testified to by "him 
in court, or (b) gained by him from testimony 
which he heard in the case in court, or (c) as- 
sumed in a hypothetical question propounded to 
him. 

Subjects of Inquiry. — In an action for malprac- 
tice against a dentist, on a charge of negligence, 
a practitioner in the profession, or one who is 
skilled therein, may give his opinion, if material, 
as to whether the treatment complained of was 
proper and in accordance with the usual and cus- 
tomary practice, under the circumstances, and, 
if not, wherein it was not ; whether the given op- 
eration was skillfully performed ; whether the de- 
fendant, whom he has seen operate, is a skillful 
operator; whether certain work shows fair and 
skillful workmanship; whether plates reasonably 
fit the mouth; whether a certain detached tooth 
was properly seated in the jaw at the time of its 
extraction, or if the gums had receded therefrom 
to any considerable extent; whether it had been 
scraped or treated by an acid since its removal 
from the jaw; whether a given method of extrac- 
tion was proper and approved by the profession ; 
whether a certain specified condition could have 
resulted from a specified treatment, or course of 
treatment; whether, under certain given condi- 
tions, certain specified methods, treatments, ap- 
pliances or devices were practical or approved by 
the profession; whether given malformations can 



164 DENTAL JURISPRUDENCE 

be corrected; whether certain conditions are cur- 
able ; whether a certain infection could have been 
induced, at a given time or in a specified manner; 
and, in fact, on any subject of inquiry at issue 
coming within the range of his special skill and 
knowledge. His opinion may be based on facts 
assumed in a hypothetical question, or on the 
stated results of his own investigation. In a 
proper case a dentist may testify whether the tooth 
was removed from a given socket exhibited or 
described, before or after death; whether a given 
tooth belonged to a given socket; as to the age of 
a skeleton from the teeth and jaws; as to the 
identity of a jaw or part thereof with one of 
which he took a cast; as to the proper method of 
treating a given condition; as to the migration 
of teeth in the jaw and to what extent and under 
what conditions ; as to the effect on teeth and jaws 
of removing some of the teeth ; as to the difficulty 
of extracting the lower wisdom tooth and when; 
as to the manner in which the latter tooth erupts ; 
as to the normal number, arrangement and char- 
acter of teeth; as to the ages at which different 
teeth appear; in fine, as to any fact which comes 
within the range of his special knowledge and 
experience as a dentist. 

Cross-examination of Expert. — In the direct ex- 
amination of an expert witness, the facts assumed 
in a hypothetical question should be such as are 
fairly within the scope or range of the testimony, 



ADMINISTEATIVE LAW 165 

or necessarily inferable therefrom. However, 
upon cross-examination, any fact which, in the 
sound discretion of the court, is pertinent to the 
inquiry, whether testified to by any one or not, 
may be assumed in the hypothetical question with 
a view of testing the skill, learning or accuracy 
of information of the expert, or to ascertain the 
reasonableness or expose the falsity of the opinion 
he has expressed. Although a question goes be- 
yond the scope of the evidence it may be pro- 
pounded upon cross-examination if its purpose is 
to elicit the reason upon which the expert bases 
an opinion expressed by him in his examination in 
chief, or to ascertain the extent of his skill and 
learning in the particular subject upon which he 
assumes to be an expert. 17 While medical works 
are not admissible in evidence to prove the things 
contained in them, still where a medical expert 
says he bases his opinion upon what a certain 
text-writer says on the subject, the text may be 
read from on cross-examination to show the wit- 
ness that the author does not sustain the conten- 
tion of the witness. 18 

Privileged Communications.— Confidential com- 
munications between attorney and client, priest 
and penitent, physician and patient, and 1 husband 
and wife, sometimes relate to matters which then 
are, or subsequently become, the subject of judi- 



17 W. C. S. Ry. v. Fishman, 169 111., 196, 200. 
IS Bloomington v. Schrock, 110 111., 219. 



166 DENTAL, JUKISPKUDENCE 

cial inquiry. When, by law, these communications 
are excluded from disclosure in evidence they are 
termed privileged communications. When the 
disclosure of such communications is forbidden by 
the law, it is upon grounds of public policy on the 
presumption that ''greater mischief would prob- 
ably result from requiring or permitting their 
admission than from wholly rejecting them." 19 

At Common Law. — Under the common law this 
privilege extended only to attorney and client. 

Statutes. — The exemption has been enlarged by 
statutes, in most states, to include communica- 
tions between physician and patient, priest and 
communicant, and husband and wife. 

Provisions. — The statutes referring to physi- 
cians usually designate the parties, disclosures to 
whom shall be privileged, as "physicians and sur- 
geons in the practice of their profession," those 
"practicing physic and surgery," etc. 

Purposes. — The purpose of these statutes is to 
throw around such disclosures as the patient is 
required to make for the necessary information of 
his attending physician the cloak of secrecy; the 
prime object being to invite confidence in respect 
to ailments of a secret nature. 

Interpretation. — In spirit, such statutes do not 
usually include cases where the malady is ap- 
parent to every one on inspection, but in their ap- 
plication they are usually construed to apply to 



19 I Greenleaf on Evidence, Sec. 236, 



ADMINISTRATIVE LAW 167 

all information necessarily disclosed or discovered 
upon any investigation which was necessary to 
the proper treatment of the patient. They pro- 
tect with the mantle of privilege whatever, in order 
to enable the physician properly to prescribe, was 
disclosed to any of his senses and which was in 
any way brought to his knowledge for that pur- 
pose; that is to say, any information which was 
necessary to enable the physician to prescribe for 
the patient as a physician, or to perform any sur- 
gical operation for him as a surgeon, is privi- 
leged. 20 Under such statutes any information dis- 
closed to a physician by a patient to enable him 
properly to prescribe for the patient, or dis- 
coveries made by the physician in the course of his 
examination therefor, cannot be revealed on the 
witness stand by the physician, and the privilege 
usually extends to persons present during the in- 
terview. 21 

Incidental Information. — Knowledge which was 
not acquired for the purpose of treatment is not 
usually exempt from disclosure. Thus, soon after 
an injury, a physician, by his own observation or 
the admission of the patient, discovers that the 
patient is under the influence of liquor, the knowl- 
edge of such fact is not protected from disclosure, 
since the disclosure was not necessary to the 



20 Campau v. North, 39 Mich., 606, 609 ; Dittrich v. Detroit, 98 Mich., 
245. 

21 Campau v. North, 39 Mich., 606 ; Edington. v. Insurance Co., 67 
N. Y., 185. 



168 DENTAL JUKISPKUDENCE 

proper treatment of the patient, and the physician 
was not required to make an investigation as to 
intoxication in order properly to diagnose the 
trouble and dress the wound. Such discovery or 
disclosure is a mere incident to the treatment. 22 

Waiver of Privilege. — The courts usually con- 
strue these privileges as being for the benefit of 
the patient and that the patient can waive the 
privilege if he desires; but unless he waives it, 
the lips of the physician are forever sealed, — "the 
seal of the law once fixed upon them, remains 
forever, unless removed by the party himself in 
whose favor it was there placed." In some juris- 
dictions the courts hold that, as it is a personal 
privilege, it must be claimed by the patient, other- 
wise the courts will enforce disclosure thereof. 23 

Dentists not Included by Construction. — Where 
the relation is such that there is no public neces- 
sity for encouraging the reposing of confidence, 
the reason for the privilege fails and the law does 
not apply. If there is no justification for disclos- 
ing secret maladies there is no confidence to be 
abused. In but very few cases is there any occa- 
sion for a patient to make confidential disclosures 
to a dentist in order to enable the latter properly 
to treat his case; therefore there is no real pub- 
lic necessity in encouraging a patient to make such 
revelations to his dentist. For this reason, if 



22 Note to Dittrich v. Detroit, 98 Mich., 245. 

23 Railroad Co. v. Martin, 41 Mich., 667. 



ADMINISTKATIVE LAW 169 

for no other, the courts have not construed the 
statutes barring from disclosure in court the com- 
munications from patient to physician and sur- 
geon to include the information obtained by den- 
tists from their patients in the course of their pro- 
fessional employment. 24 

Code Napoleon. — It is said that the penal code 
of France makes it a crime for a physician to dis- 
close secrets of his patient revealed to him for the 
purpose of medical assistance, or discovered by 
him in the course of his investigation for that 
purpose: 

Criminal Purpose. — If communications are made 
to a physician for the purpose of furthering some 
criminal design or conspiracy, or some other vio- 
lation of law, they would not be privileged. 25 



24 People v. De France, 104 Mich., 563. 

25 Hewitt v. Prime, 21 Wend., 79. 



CHAPTER XIV 

MISCELLANEOUS SUBJECTS 

Contracts and Work on Sunday. — Validity. — A 
contract executed on Sunday is not void at com- 
mon law by reason of having been entered into on 
that day. 1 Neither does the common law prohibit 
ordinary labor on Sunday. 2 Statutes prohibiting 
the execution of contracts and the transaction of 
business and the performance of labor on Sunday 
have been held to be within the reasonable exer- 
cise of the police power for the protection, health 
and welfare of society. Statutes limited to a pro- 
hibition of disturbances of the peace and good 
order of society by labor on Sunday, do not pro- 
hibit ordinary business transactions. A general 
law prohibiting the transaction of all business and 
the performance of all labor on Sunday, except 
work of necessity and charity, is constitutional 
and enforcible. However, where such statutes or 
ordinances single out a particular occupation 
whose exercise does not necessarily disturb the 
peace and good order of society, they are regarded 
as class legislation and will not be enforced. 3 



1 Richmond v. Moore, 107 111., 429. 

2 Eden v. People, 161 111., 296. 

3 Eden v. People, 161 111., 296. 

170 



MISCELLANEOUS SUBJECTS 171 

Charity and Necessity. — The statutes of the 
various states prohibiting labor and the transac- 
tion of business on Sunday, naturally and neces- 
sarily except work of necessity and charity. What 
constitutes work of necessity and charity has often 
been before the courts and is not always easy to 
determine. The circumstances of each particular 
case must be taken into consideration. An act 
which would be considered a necessity, under one 
set of circumstances, might be clearly prohibited 
under a different set of circumstances. Necessity, 
within the meaning of the law, is generally con- 
sidered a moral and social fitness or propriety of 
the work or labor done under the circumstances 
of the particular case. 4 The necessity referred 
to in the statute need not be an absolutely un- 
avoidable physical necessity; a mere moral emer- 
gency which will not reasonably admit of delay is 
a necessity within the contemplation of such stat- 
utes. 5 It has been said that it is impossible to 
lay down any general rule as to work of necessity 
and charity, and also that the exigencies of human 
life, which demand work of necessity and charity, 
are so numerous and diversified by attending cir- 
cumstances as to defy classification. 6 

Dental Services. — The usual services of a phy- 
sician are generally regarded as coming within 



4Flagg v. Millbury, 4 Cush., 243; Johnston v. People, 31 111., 469. 

5 Burns v. Moore, 76 Ala., 339, 342. 

6 Johnston v. Commonwealth, 22 Pa. St., 102 ; Ungericht v. State, 119 
Ind., 379. 



172 DENTAL JURISPRUDENCE 

the exception. The work of a dentist in operating 
upon and relieving the pain of an ulcerated tooth, 
or similar service, would doubtless be regarded 
as work of necessity. It is probable that the ordi- 
nary work of preparing and filling a tooth, fitting 
bridges, taking impressions, and like services, 
where the health of the patient was not clearly in- 
volved, would not be considered work of neces- 
sity. The mere convenience of either the dentist 
or the patient, however emergent, would not bring 
such work within the exception. 

Eecovery for Services. — Where the statute 
provides a penalty for its violation, a dentist can- 
not recover for services rendered a patient in vio- 
lation of the statute. If, however, he exacts his 
pay beforehand, the patient would not be able to 
recover the same by reason of the fact that the 
law had been violated. 

Eecovery for Article. — While none of the or- 
dinary prosthetic work of a dentist can reasonably 
be considered as work of necessity, still the pa- 
tient cannot accept a plate made on Sunday and 
then refuse to pay for the same because of the 
violation of the statute, since, under the law, the 
obligation of the dentist was to furnish a completed 
article, and not services, therefore the patient 
could not be interested in the time when the work 
was actually done. For the same reason a pa- 
tient cannot refuse to accept a plate merely be- 
cause it was made on Sunday. 



MISCELLANEOUS SUBJECTS 173 

Survival of Action. — In the absence of statutory 
provisions to the contrary, a right of action for 
malpractice does not survive the death of either 
patient or practitioner, and if suit has been 
brought, it abates upon the death of either. 7 This 
has been changed by statute in some states. 

Surviving Partner. — However, if a partner, 
who is guilty of malpractice, dies, the right of ac- 
tion survives against the surviving partner, 
whether the latter contributed to the malpractice 
or not. 8 

Joint Actions. — Where two or more dentists are 
jointly guilty of malpractice, suit may be brought 
by the patient against all jointly, or against one, 
or against any number less than all, at the option 
of the patient, or separate actions may be brought 
against all, or any number less than all. 9 One 
dentist, however, is not liable for an injury in- 
flicted by another, unless they were partners or 
acted in concert or cooperation, and several will 
not be liable for the torts of one unless they con- 
certed or cooperated in the negligent act, or unless 
their combined, cooperating conduct produced the 
resultant injury. Where the acts of the practi- 
tioners are entirely distinct and separate as to 
aid, concert, advice, cooperation or countenance, 



7Vittum v. Gilman, 48 N. H., 416; Boor v. Lowrey, 103 Ind., 468; 
Wolf v. Wall, 40 O. St., Ill; Lattimore v. Simmons, 13 S. & R., 183. 

8 Hess v. Lowrey, 122 Ind., 225. 

9 Barnes v. Means, 82 111., 378; Yeazel v. Alexander, 58 111., 254, 261; 
Chicago v. Babcock, 143 111., 358, 366. 



174 DENTAL JUKISPRUDENCE 

from one to the other, there can be no joint liabil- 
ity and each will be liable only for his own wrong. 10 
An attending physician who assists a surgeon is 
not jointly liable with the latter for neglect to re- 
move a sponge from the wound. 11 

Contribution. — Where a patient sues only one 
practitioner, or any number less than all who are 
jointly guilty of malpractice, those sued cannot 
require the others to be made parties to the suit 
nor to contribute to the payment of the judg- 
ment. 12 

Satisfaction. — In cases of this character, a pa- 
tient can have but one satisfaction of his damages. 
If, for a sufficient consideration, he releases one 
of the joint wrong-doers, he releases all, and, if 
a judgment against one is satisfied, it bars a prose- 
cution of the others. 13 

Purchase of Peace — Agreement not to Sue. — An 
agreement not to sue is not considered an accord 
and satisfaction, does not amount to a release 
and, therefore, if given to one or more joint wrong- 
doers, for a sufficient consideration, does not bar 
action against other joint wrong-doers. 14 

lOYeazel v. Alexander, 58 111., 254, 262. 
li Brown v. Bennett, 157 Mich., 654. 

12 Rend v. R. R. Co., 8 111. App., 517, 525; Reed v. Peterson, 91 111.. 
288, 297. 

13 Vigeant v. Scully, 35 111. App., 44, 46. 

14 Chicago v. Smith, 95 111. App., 335, 339. 



CHAPTER XV 

FALSE REPRESENTATIONS 

Trust and Confidence.— The relation of dentist 
and -patient necessarily imposes a degree of trust 
and confidence on the part of the patient and 
should require the utmost good faith and fair deal- 
ing on the part of the dentist. The law justifies 
a patient in relying upon the representations of 
his dentist as to the nature of his malady, the 
curability thereof, the character of treatment 
necessary and the ability of the dentist to accord 
relief. If a practitioner is required by his patient 
to give an unqualified opinion as a condition pre- 
cedent to his employment to treat the patient, he 
must use reasonable and ordinary skill and care, 
and his best judgment, and exercise good faith 
and the strictest honesty, eliminating all selfish 
consideration, in forming and expressing that 
opinion. In such manner only can he discharge 
his full legal duty in this respect. The reposing 
of faith and confidence by one party in another 
and the justification thereof in the law, are im- 
portant elements in an action of deceit. 1 The law 
does not assume to safeguard every confidence, and 



lClodfelter v. Hulett, 72 Ind., 137. 
175 



176 DENTAL JURISPRUDENCE 

cannot undertake to right every abuse thereof, 
since these elements enter into every business and 
social transaction. In the eyes of the law there 
are only two general classes of people, — (a) the 
legally competent, and (b) the legally incompetent. 
The legally competent are all put on substantially 
the same plane; they are treated, in the law, as 
though they were absolutely equal in mental abil- 
ity, experience and development. The man with 
ten talents is under no different or greater obli- 
gations by reason of that fact than the man with 
one talent. 

Confidential Relations. — There are certain re- 
lations, however, in which the law takes cogni- 
zance of the fact that the parties thereto are not 
on an equality; that one of the parties holds a 
dominant position; that the origin of the special 
relation is due to the superior knowledge and 
ability of the one over the other in the subject- 
matter involved; that a degree of special faith 
and confidence is essential, or at least important, 
to successful results from the efforts put forth 
in that behalf, and that the general welfare re- 
quires that the utmost good faith be exacted of 
the dominant party, and that the other party be 
encouraged to repose faith and confidence in the 
superior. These considerations have special ap- 
plication to the dental and medical professions. 
Why should the practitioner be permitted to say 
that his patient should not have believed him, 



FALSE REPRESENTATIONS 177 

or that the patient should have doubted or ques- 
tioned his motives? 

Opinions. — In ordinary business transactions, 
the expression of an erroneous or false opinion is 
not considered, in law, a false representation. 
Thus-, opinions of quality, utility, value, capability 
or other generally recognized commercial attri- 
butes of an article are not regarded as statements 
of fact, within the meaning of the law. 

Common Law Rule. — Caveat emptor is the pre- 
vailing doctrine. The rule is based upon the pre- 
sumption that both parties to the transaction are 
equally competent to form an opinion ; that neither 
should be misled by the knowingly false or hon- 
estly erroneous opinions of the other, and that as 
the basis of the opinion is equally within the 
knowledge of both, neither should be deceived by 
the alleged mental conclusions of the other. In a 
great majority of business proceedings this pre- 
sumption is practically true, and neither party 
thereto is materially influenced by the opinions of 
his adversary. False representations, to be the 
basis of an action of deceit or criminal prosecu- 
tion, must be of a past or present existing ma- 
terial fact. The common law did not encourage 
reliance upon a mere opinion of an adversary in 
a business deal. Adversary is used advisedly; the 
common law practically forced a vendee to con- 
sider the vendor as an enemy. They were re- 
garded in the light of duelists battling for ad- 



178 DENTAL JURISPRUDENCE 

vantage. So long as the vendor confined himself 
to opinions, whether of quality, utility, value, ca- 
pability, future usefulness, productivity, salability 
or other similar attributes of the article, he was 
not required to fix any limit to his imagination, ex- 
cept the credulity of the prospective buyer; but 
the harshness of this doctrine has been somewhat 
modified in modern times and the more equitable 
doctrine of the civil law is gradually shaping a 
new attitude of the courts toward the subject. 2 

Confidential Relations and Special Knowl- 
edge. — An opinion, however, may be a sufficient 
basis for an action of deceit, under proper condi- 
tions of subject-matter and relation of parties. 
Introduce a confidential relation and the reason 
for the rule of caveat emptor ceases. Where the 
disparity is great, the expression of an opinion 
may have all the consequences, and should have 
all the legal responsibilities, of an assurance of a 
material fact. 

Misrepresentation by Opinion. — Where the re- 
lation is in its nature confidential, and the subject- 
matter is a profession requiring special knowl- 
edge and skill, and the party expressing the opin- 
ion is a practitioner therein, while the one to whom 
the opinion is conveyed is not versed in the pro- 
fession, the assurance of a belief may be sufficient 
in itself to induce and control the conduct of the 



2 Hicks v. Stevens, 121 111., 186; Hedin v. Minn. Med. & Surg. Institute, 
62 Minn., 146. 



FALSE REPRESENTATIONS 179 

party to whom it is communicated, and the practi- 
tioner should be held to the strictest accountability 
for the honesty, disinterestedness and practical 
accuracy thereof. The patient may have no means 
of testing the truth of the opinion of the practi- 
tioner or the good faith of its utterance. Where 
one of the parties to a transaction possesses spe- 
cial learning and skill not possessed by the other 
on the subject with respect to which the opinion 
is given and which is the subject of the relation, 
and where the other party is justified in believing 
that such opinion can and ought to be an approxi- 
mation to the truth, and the relation is such as 
to justify a reliance by the one on the good faith 
of the other, an action of deceit may be predicated 
for the false or reckless statement thereof, when 
deception is intended and damage results in re- 
liance thereon. Of course, this does not mean 
that a practitioner cannot express an opinion ex- 
cept at his peril, nor communicate his belief with- 
out being liable for deceit, if it turns out to be 
wrong. We are considering only his good faith 
in reference thereto. He cannot use a professed 
opinion as a vehicle to entrap and defraud his 
patients. He must not pretend to have a convic- 
tion which he does not hold, nor make capital out 
of an opinion which he cannot honestly possess. 3 
Fraud. — Fraud vitiates everything it touches 



3 Hedin v. Minnesota Med. & Surg. Institute, 62 Minn., 146 ; Hicks v. 
Stevens, 121 111., 186. 



180 DENTAL JURISPRUDENCE 

and makes voidable every contract it induces. 
Any deceitful practice in depriving or endeavor- 
ing to deprive another of property or rights by 
means of some artful device, trickery, chicanery, 
contrivance, stratagem or plan contrary to the 
plain rules of common honesty, is fraud. 4 Fraud 
may be said to consist in deception intentionally 
practiced upon another to induce him to part with 
his property or to surrender some legal right or 
claim, and which accomplishes the end designed. 5 
Fraud which gives rise to an action of deceit 
exists where a person makes a false representa- 
tion of a material fact susceptible of knowledge, 
knowing it to be false, or as of his own knowl- 
edge, when he does not know whether it is true 
or false, with the intention to induce the person 
to whom it is made, in reliance upon it, to do or 
refrain from doing something to his pecuniary 
hurt, when such person, acting with reasonable 
prudence, is thereby deceived and induced to so 
do or refrain to his damage. 6 

Motive. — There need not be a corrupt motive 
of gain nor a wicked motive of injury to predi- 
cate an action of deceit, although the former is 
usually present. The gist of fraudulent repre- 
sentations is the producing, by statement or con- 
duct, of a false impression upon the mind of the 
party to whom they are made, with the intent to 



4 Mitchell v. Kintzer, 5 Pa. St., 216, 219. 

5 Judd v. Weber, 55 Conn., 267, 277. 

6 20 Cyc, 10. 



FALSE REPRESENTATIONS 181 

create such false impression, and, where this re- 
sult is accomplished, the means by which it is 
consummated, whether by the expression of a be- 
lief or by the assertion of a fact, are not very 
material as a matter of justice and fair deal- 
ing. 

Fraudulent Opinion by Expert. — A charge of 
fraud may be based upon a knowingly false ex- 
pression of opinion by an expert, or upon an ex- 
pression by an expert of an opinion in utter dis- 
regard of the facts and inconsistent with the 
honesty and good faith of the party expressing it, 
where the party has, or, under the law should 
have, special knowledge on the subject, not pos- 
sessed by the other party, and where he ought 
to be able to approximate the truth. 7 

Materiality. — It must appear that the repre- 
sentation of fact or opinion was material to the 
transaction, otherwise the court will not attempt 
to give relief. If a false representation be such 
that, had it not been made, the transaction would 
not have been entered into, then it is material; 
but if it be established or made probable that 
the same thing would have been done in the same 
way by the party complaining, if the representa- 
tion had not been made, it cannot be deemed ma- 
terial. 8 The facts that the statement or opinion 



7 Hedin v. Minnesota M. & S. I., 62 Minn., 146 ; Picard v. McCormick, 
11 Mich., 68; Kost v. Bender, 25 Mich., 515 (sale of oil lands) ; Powell v. 
Fletcher, 18 N. Y. Supp., 451 and 19 N. Y. Supp., 911 (sale of violin). 

8 McAleer v. Horsey, 35 Md., 439. 



182 DENTAL JURISPRUDENCE 

was intended to deceive, was of a character cal- 
culated to deceive the party to whom it was ad- 
dressed, and actually did deceive, are considered 
sufficient to establish its materiality. 9 To be ac- 
tionable, the representation must be as to a ma- 
terial fact, and susceptible of approximate 
knowledge. Generally speaking, if they appear to 
be mere matters of opinion or conjecture, they 
are not regarded as material. 10 

Intent. — A fraudulent intent or design is nec- 
essary in order to predicate a right of action. 
"Where the statement is made or the opinion ex- 
pressed with knowledge of its falsity, or reck- 
lessly without any knowledge of its truth or 
falsity, and as a positive assertion calculated to 
convey the impression that the speaker knows or 
believes it to be true, a fraudulent intent will al- 
ways be inferred. Where the statement or opin- 
ion was false and material, and the party, when 
he made it, knew that it was false, or, not know- 
ing whether it was true or false, and not caring 
what the effect might be, made it in reckless dis- 
regard of the facts, and paying no heed to the 
injury which might ensue to the other party, a 
fraudulent intent will be presumed. 11 

Honest Error. — An honest error of judgment 
is not sufficient to predicate a charge of fraud be- 



9 McDonald v. Smith, 139 Mich., 211. 
lOHedin v. Institute, 62 Minn., 146. 

llHedin v. Institute, 62 Minn., 146; Kuntze v. Kennady, 147 N. Y. 
124, 129. 



FALSE KEPKESENTATIONS 183 

cause the wrongful intent is wanting. 12 Where 
an opinion is recklessly made, however, a fraudu- 
lent intent may be presumed. 13 

Elements of the Tort. — The essential elements 
of an action of deceit brought by a patient against 
a practitioner for the expression of a false or er- 
roneous opinion are — 

(a) The opinion must have been communicated 
directly or indirectly by the practitioner to the 
patient ; 

(b) The opinion must, in fact, have been false 
or erroneous ; 

(c) The practitioner must, at the time, have 
known it to be false, or, not knowing its truth 
or falsity, he must have promulgated it under such 
circumstances as to show a disregard for the in- 
terest of the patient, and that he ought to have 
known the approximate truth; 

(d) The practitioner must have intended to de- 
ceive the patient; 

(e) The patient must not have known the falsity 
of the opinion; 

(f) The patient must have been justified, un- 
der the circumstances, in believing the opinion to 
be true ; 

(g) He must have believed it to be true; 

(h) He must have relied upon it and his con- 
duct must have been controlled by it ; 



12 Johnson v. Belney, 9 111. App., 64. 

13 Miller v. John, 208 111., 173. 



184 DENTAL JUBISPKUDENCE 

(i) The opinion must have materially induced 
the conduct of the patient in his reliance there- 
on, and it must appear that without it his con- 
duct would probably have been different, but it is 
not necessary that it should have been the sole 
inducement ; 

(j) The patient must have been damaged by 
his reliance upon the representations. 14 

Illustrations of the Principle. — In a certain 
case, the patient, who was an illiterate man, had 
previously been permanently injured in an acci- 
dent which left him a physical wreck. He con- 
sulted with the physician in charge of an insti- 
tute, as to his condition, the probability of his 
recovery and their ability to give him relief. The 
injury which he had received was a fracture at 
the base of the skull, and it occurred about a 
year before the conference with the physician. 
The evidence warranted the jury in finding that 
his injuries were incurable, and that any honest 
physician, having the history of the case before 
him, must, after a proper examination, have come 
to that conclusion. The evidence tended to show 
that after an examination the physician posi- 
tively assured the patient that he could be cured, 
and that by treatment at the institute he would 
be made sound and well again. Eelying upon 
these representations, and believing them to be 
true, the patient was induced to enter into a writ- 



14 Hicks v. Stevens, 121 111., 186; Eaton v, Winnie, 20 Mich., 126. 



FALSE REPRESENTATIONS 185 

ten agreement obligating himself to pay the sum 
of five hundred dollars for the treatment. It ap- 
pears from the opinion of the court that the writ- 
ten contract did not guarantee a cure or promise 
that the patient would be restored to good health, 
or even assure him of any relief, but merely ob- 
ligated the institute to give him the treatment. 
He paid his money, took the treatment and was 
not cured. After learning his real condition he 
brought an action against the institute and the 
physician to recover the fee paid, on the ground 
that he was induced to enter into the contract 
and pay his money to the defendants by means 
of false and fraudulent representations. To 
maintain his action it was incumbent on the pa- 
tient to prove that his malady was incurable ; that 
the defendants represented that he could be cured 
and that they would cure him ; that they knew or, 
if skillful and honest, should have known that 
such representations were false; that they were 
not the expression of an honest opinion based 
upon a proper investigation, but were either 
fraudulently made with knowledge of their falsity, 
or were uttered with a reckless or ignorant dis- 
regard of facts, and of the interest of the pa- 
tient; that the patient did not know their falsity 
but believed them to be true ; that in reliance there- 
on he entered into the contract and parted with 
his money; that his condition was such that an 
honest physician should have been able to approxi- 



186 DENTAL JUEISPKUDENCE 

mate the truth and to have known that his malady 
was incurable. On the trial, before a jury, the pa- 
tient obtained a verdict and judgment for the $500 
which he had paid, and interest thereon from the 
date of payment and, on appeal, the judgment was 
affirmed. 15 

Responsibility of Practitioner for Opinion. — 
The honest practitioner can usually approximate 
the truth in his prognosis in such cases, and the 
patient is justified in relying upon his opinion 
as being substantially correct. The law must ex- 
act of the practitioner the utmost good faith in 
this respect. He dare not pretend to have an 
opinion which he does not hold, nor express an 
opinion which ordinary skill and honesty should 
know to be false. If the expressed opinion is con- 
trary to the enlightened judgment of the profes- 
sion at the time and place, the jury are warranted 
in concluding that it was deliberately false and 
that the practitioner knew he could not accom- 
plish the results stated and, therefore, that the 
representations and promises were made for the 
wrongful and deliberate purpose of depriving the 
patient of his money, without giving the consid- 
eration anticipated by the patient and promised 
by the practitioner. While the responsibility of 
practitioners is not based upon the result of their 
remedies, they owe their patients the highest de- 
gree of fairness and good faith and they must not 



15 Hedin v. Institute, 62 Minn., 146. 



FALSE BEPRESENTATIONS 187 

be guilty of any deception or indirection to the 
detriment of their patients. 16 

Fraud in Concealment of Inability to Relieve. — 
Where a practitioner, knowing that he cannot 
cure an ailment or relieve a trouble, and conceal- 
ing such prognosis from the patient, persuades 
the latter to take or continue a course of treat- 
ment and, during the progress of the treatment, 
encourages him to believe that he is improving 
satisfactorily, well knowing that his assurance is 
false and that the patient is relying upon his state- 
ments, he is guilty of such fraud as will defeat 
a recovery for his services in that behalf. 17 If 
he finds that he cannot cure, he must so advise his 
patient, and any concealment of his ignorance of 
the patient's disease, or of his inability to af- 
ford relief, while at the same time encouraging 
the patient to continue the services, is a gross 
fraud on the part of the practitioner and ought to 
defeat his right of recovery for such services. 18 
In the Logan case a physician brought an action 
to recover his fee for treatments and the patient 
defended on the ground of malpractice, charging 
that the physician knew he was doing the patient 
no good, while pretending to the patient that he 
was improving. The physician was practicing as 
a specialist for diseases of the nose, throat and 
ear. Covering a period of nine months he had 



16 Logan v. Field, 75 Mo. App., 594, 601. 

17 Logan v. Field, 75 Mo. App., 594. 

18 Chase v. Heaney, 70 111., 268. 



188 DENTAL JURISPKUDENCE 

previously given the patient sixty-four treatments 
for his malady, which was an affection of the 
nose, and had received his pay therefor. It ap- 
pears that the treatment did not do the patient 
any good. Later, he returned for treatment but 
told the physician he could not take the same un- 
less he could be cured, and the physician said 
that he could not tell him at that time, but en- 
couraged him to renew the treatments, which was 
done. During the second course of treatment the 
physician frequently told the patient his nose 
was getting along beautifully. In fact, however, 
he was not improving and the physician subse- 
quently admitted such fact and said that an op- 
eration would be necessary in order to effect a 
cure or afford relief. Apparently, the patient re- 
fused to submit to an operation. On refusal of 
the patient to pay for the treatment, the physi- 
cian brought suit for his fee and the patient 
charged malpractice, in that he had received no 
benefit and that the physician knew, or ought to 
have known, that he could not help the patient. 
The case went to the appellate court because of 
alleged error in the refusal of certain instructions 
asked by the patient. 

Practitioner Chargeable with Knowledge. — It 
was considered by the court that if the practi- 
tioner, by the exercise of that degree of skill and 
care which the law exacts of him might and ought 
to have reasonably discovered that the disease of 



FALSE REPRESENTATIONS 189 

the patient was incurable, or that it was a case 
that would not yield to the usual mode of treat- 
ment, or that it was probable that the patient 
would not be benefited by his treatment, and 
yet failed to make such discovery, or, if he made 
such discovery and failed to advise the patient 
thereof, he was guilty of negligence and bad faith. 
It was his duty to act in the utmost good faith 
towards the patient, and if he knew that he could 
not accomplish a cure, or that the treatment 
adopted by him would probably not be of any 
substantial benefit, it was his duty to advise the 
patient to that effect, and a failure to disclose 
such fact to the patient was a breach of his duty. 
If the patient in fact received no benefit from the 
treatment sued for, and this result was due to 
the lack of ordinary professional skill and care 
of the practitioner, or was because of his failure 
to exercise such skill and care to discover or treat 
the case, there could be no right on his part to 
recover from the patient for his services. Even 
though the practitioner at the inception of the 
treatment did not know that his method would be 
effective, he might be justified in undertaking the 
case, still, if, during the progress of the treat- 
ment, he discovered that he could do the patient 
no good, or, by the exercise of the care and skill 
required of him, he could have discovered such 
fact, but did not, or, if, having discovered it, he 
concealed the same from the patient and encour- 



190 DENTAL JURISPRUDENCE 

aged him to continue the treatment and accept 
the services, then unquestionably he ought not to 
recover any compensation therefor, after the dis- 
covery that his treatment would be ineffectual, or 
after he should have discovered its want of ef- 
ficacy by the exercise of reasonable skill and care. 
Reason for the Rule. — We are readily convinced 
where we want to believe. The afflicted are easily 
deceived. With reference to their ailments they 
grasp at phantoms, pursue the will-o'-the-wisp 
and cling to an offer of relief with the tenacity 
of a delusion. Money has little significance ex- 
cept as a means to a restoration to health. The 
invalid is readily persuaded to spend his sub- 
stance for remedies which do him no good. 
Treatment like religion is taken on faith, and, once 
he is convinced, he becomes the dupe of the most 
arrant impostor. In any event he can know the 
value of the treatment only by results and in the 
meantime his money is being wasted. The causes 
which lead to health and disease are often obscure 
and elude even the trained mind of the honest and 
faithful practitioner. How easy, therefore, for 
the dishonest practitioner to persuade his victim 
to continue treatments, until his substance is 
squandered and he is impoverished. The dishon- 
est practitioner is the meanest of confidence men. 
The field of opportunity is great and, sorry com- 
mentary though it be, it must be admitted that the 
opportunity has been well improved. 



FALSE REPRESENTATIONS 191 

It is a fraud for a practitioner to pretend, 
to the detriment of his patient, that he can cure 
or alleviate a disease when he knows he cannot; 
or that his patient is improving, when he knows 
or ought to know that the trouble is not being re- 
lieved; or that he understands the nature of the 
malady, when, in fact, he is ignorant thereof. In 
all these cases, the law should charge knowledge, 
where the practitioner with the application of or- 
dinary skill and care, and the exercise of good 
judgment, ought to have known. If he finds he 
cannot help his patient he must advise him of that 
fact. 19 He owes this duty of informing his pa- 
tient for two reasons, (a) that the patient may 
determine whether he wants to continue the serv- 
ices, and (b) that the patient may seek relief else- 
where, if he desires. 

Case Explained. — In the Hedin case, the court 
uses the following language : 

"Considering the circumstances and the rela- 
tion of the parties there was something more in 
defendants' statements than the mere expression 
of an opinion upon a matter of conjecture and 
uncertainty. It amounted to a representation 
that plaintiff's physical condition was such as to 
insure a complete recovery. The doctor, espe- 
cially trained in the art of healing, having su- 
perior learning and knowledge, assured plaintiff 
that he could be restored to health. . . . The 



19 Chase v. Heaney, 70 111., 268. 



192 DENTAL JURISPRUDENCE 

doctor with his skill and ability should be able 
to approximate the truth when giving his opin- 
ion as to what can be done with injuries of one 
year's standing, and he should always be able to 
speak with certainty before he undertakes to as- 
sert positively that a cure can be effected. If he 
cannot speak with certainty, let him express 
doubt. If he speaks without any knowledge of 
the truth or falsity of a statement that he can 
cure, or does not believe the statement to be true, 
or if he has no knowledge of the truth or falsity 
of such a statement, but represents it as true of 
his own knowledge, it is to be inferred that he 
intended to deceive and, deception being designed 
in either case, and injury having followed from 
reliance upon the statements, an action for de- 
ceit will lie. " 20 

False Advertisements. — False advertisements 
in newspapers or by circulars, intended for the 
public, and soliciting patronage, when acted upon 
by a party to his damage, may be grounds for an 
action of deceit. 21 The advertiser need not know 
that the patient saw the advertisement and has 
acted upon the information obtained therefrom, 
and he need not have made any personal repre- 
sentations to the patient. 

As to Third Party. — False statements as to 
the curability of a malady, method of treatment, 



20 Hedin v. Minnesota Medical & Surgical Institute, 62 Minn., 
64 N. W., 158. 

21 Warfield v. Clark, 118 la., 69. 



FALSE BEPKESENTATIONS 193 

and the ability of a third party to cure the same, 
when made with intent to defraud and when 
acted upon to his damage by a patient, in good 
faith believing them to be true, may be sufficient 
to predicate an action of deceit against the party 
making them, by the party thereby defrauded. 22 
None of the essential elements of fraud need be 
established to a mathematical certainty; in fact 
such a thing as mathematical certainty cannot ex- 
ist in the enforcement of the law. All that courts 
and juries usually have to act upon is proof es- 
tablishing belief to a moral certainty, and moral 
certainty always admits the possibility of error. 23 
Remedies. — Where a patient has been de- 
frauded by the false and fraudulent representa- 
tions, opinions and pretenses of a practitioner, 
into parting with his money for treatment which 
inevitably can do him no material good, he may, 
upon discovery of the fraud, bring an action and 
recover the money he has paid, and any other 
actual damage he has sustained. On the other 
hand, if he has made no payment, but is sued for 
a fee for the treatment, whether the action be 
based on a contract induced by the fraud or upon 
an implied agreement to pay for the services, he 
may urge the deceit as a defense and, if he es- 
tablishes the same, he will defeat the claim as- 
serted against him and, on proper pleadings, may 

22 Hedin v. Institute, 62 Minn., 146; Kenner v. Hardin, 85 111., 264. 

23 Brown v. the State, Okl., ; 132 Pac, 359. 



194 DENTAL JURISPRUDENCE 

even recover judgment for any actual damages he 
may have sustained. 

Damages. — The treatment may not have re- 
sulted in any actual damage to the patient, and 
he may have suffered no loss, except the money 
or other consideration with which he parted and, 
in that event, his recovery in an action of deceit 
would be limited to the amount of that consider- 
ation. If he parted with money he would be 
further entitled, in some states, to interest 
thereon from the date of payment to the time 
of the judgment. 24 If he parted with property, 
he can recover its fair cash value as of the 
date of delivery to the practitioner and, in some 
states, in addition thereto, he may recover inter- 
est thereon from the date of such delivery to the 
date of the judgment. 



24 Hauk v. Brownell, 120 111., 161. 



CHAPTEE XVI 
CONTRACTS IN RESTRAINT OF TRADE 

Not Favored in Law. — Contracts in restraint 
of trade, industry, employment or personal activ- 
ity are not favored in law because they are con- 
sidered as being- against public policy. The law 
will not permit any one to restrain a person from 
doing what the public welfare and his own inter- 
est requires that he should do. 1 Where the re- 
straint is not general, but partial and reasonable, 
and founded upon good consideration, such con- 
tracts are valid and enforcible. 2 Probably the 
reports of every state in the Union contain ad- 
judicated cases in which some professional man 
sold the good will of his practice for a consid- 
eration, and agreed not to engage in the prac- 
tice of his profession within a certain distance 
of his former location. When the inhibition has 
been reasonably limited as to space, it has been 
uniformly enforced. 3 

Specific Performance. — Courts of equity will 



1 Homer v. Ashford, 3 Bing., 322. 

2 Hedge v. Lowe, 47 la., 137; Boutelle v. Smith, 116 Mass., Ill; 
Fairbank v. Leavy, 40 Wis., 637; Linn v. Sigsbee, 67 111., 75; Arnold v. 
Krutzer, 87 la., 214. 

3 Dwight v. Hamilton, 113 Mass., 175 ; Cook v. Johnson, 47 Conn., 175 ; 
Linn v. Sigsbee, 67 111., 75; Niles v. Fenn, 33 N. Y. Supp., 857; Horner 
v. Graves, 7 Bing., 735; Butler v. Burleson, 16 Vt., 176. 

195 



196 DENTAL JURISPRUDENCE 

enforce specific performance of such negative 
agreements by restraining a breach thereof by 
injunction, prohibiting the covenantor from prac- 
ticing. The injunctional relief is based upon the 
theory that the covenantee does not have a com- 
plete and adequate remedy at law, since the lat- 
ter action is for damages only and in which he 
can recover only what he can prove. The evi- 
dence to establish damages might not be avail- 
able, and, ordinarily, would be purely specula- 
tive. 4 By all means such contracts should be 
in writing and the restriction should not be 
greater than absolutely necessary, reasonably to 
protect the vendee and insure him that he gets 
what he contracted for. It is advisable to incor- 
porate a limitation as to time. While the latter 
limitation is not indispensable, it may become im- 
portant if the limitation as to space might other- 
wise appear unreasonable. 5 

Reasonable Restriction. — Since what is a rea- 
sonable restriction depends upon the peculiar cir- 
cumstances of each case, no general rule can be 
given. The object of the provision in the cove- 
nant is the protection of the covenantee by secur- 
ing to him the benefit of something which the 
covenantor might otherwise be able to control. 
Still, the covenant may be enforced after the 



4 Hubbard v. Miller, 27 Mich., 15; Doty v. Martin, 32 Mich., 462; 
Parkinson's Appeal, 78 Pa. St., 196; Ellis v. Jones, 56 Ga., 504. 

5 Ocean Steamer Navigation Co. v. Winsor, 20 Wall., 64; Feckelstein 
Bros. Co. v. Feckelstein, 76 N. J. L., 613. See 24 L. R. A., 913. 



CONTRACTS IN EESTEAINT OF TRADE 197 

death of the covenantee where the agreement ran 
to him and his assigns. 

Agreement Not to Practice.— Where a dentist 
sold his furniture, fixtures and good will for a 
consideration, and bound himself not to practice 
dentistry within a radius of ten miles of the vil- 
lage in which the office was located, and after- 
wards violated his covenant by attempting to en- 
gage in the practice, he was restrained from prac- 
ticing within ten miles from the center of the 
village. 6 An agreement by a dentist ancillary to 
the sale of his practice and good will, for a con- 
sideration, not to practice dentistry within cer- 
tain specified reasonable limits of a city, is valid 
and will be enforced ; 7 but an agreement for a 
consideration not to practice as a dental surgeon 
within one hundred miles of a specified city was 
considered unreasonable and void. The court will 
not attempt to make a new contract for the par- 
ties by fixing a reasonable limit within which it 
will enforce the covenant, though such reasonable 
limitation can readily be determined. The court 
will enforce or annul the contract as made, but 
will not undertake to make a new contract for the 
parties. 8 Where a physician, for a considera- 
tion, agreed not to practice medicine in the vil- 
lage or vicinity for at least the term of five years, 
on attempting to violate the covenant he was re- 



6 Cook v. Johnson, 47 Conn., 175. 

7 Niles v. Fenn, 33 N. Y. Supp., 857. 

8 Horner v. Graves, 7 Bing., 734. 



198 DENTAL JURISPRUDENCE 

strained from practicing within ten miles of the 
village limits. 9 It is advisable to require the ven- 
dor to agree not to engage in the practice in the 
vicinity, nor enter the employ of any one there 
engaged in the practice, and the promise should 
run to the promisee and his assigns. 

Injunctions. — While courts of equity will re- 
strain parties from affirmative acts in violation 
of their covenants, they will not usually enter 
mandatory injunctions which will require per- 
formance of acts on the part of the covenantor. 10 
Thus, where an actress agrees to sing at a cer- 
tain theatre and covenants not to engage with a 
rival house, the courts will not require her to ap- 
pear as promised but they will restrain her from 
warbling at a rival theatre in violation of her 
covenant. The reason for refusing the affirma- 
tive relief is because courts will not enter decrees 
where they cannot enforce substantial compli- 
ance therewith. Imagine a court making a prima 
donna sing! n 

In order to be entitled to relief it is not nec- 
essary that the covenantee prove that the consid- 
eration was adequate, or that the covenantor is 
insolvent, or that the damage is irreparable. 12 



9 Timnierman v. Dever, 52 Mich., 34. 

10 Wollensak v. Briggs, 20 111. App., 50; Blanchard v. R. R. Co., 31 
Mich., 43. 

n Lumley v. Wagner, 1 DeG., M. & G., 604; Webster v. Dillon, 3 
Jur. N. S., 432; M. E. Co. v. Ward, 9 N. Y. Supp., 779; 22 Cyc, 857. 

12 Ryan v. Hamilton, 205 111., 191; Gordon v. Mansfield, 84 Mo. App. ; 
367; Beatty v. Coble, 142 Ind., 329; McCurry v. Gibson, 108 Ala., 451; 
22 Cyc, 869. 



CHAPTER XVII 
STATUTES OF LIMITATIONS 

Policy of the Law. — It is the policy of the law 
to discourage the litigation of stale matters. 
Such policy was originally adopted to discourage 
perjury by trying issues when the facts were fresh 
in the memory of the witnesses and the falsity 
of testimony could more readily be disproved. 
Statutes of limitation are universally in effect 
whereby the time within which actions may be 
brought, is fixed according to sundry classifica- 
tions or arbitrary designations. 

When Cause Accrues. — The time within which 
a suit for malpractice may be brought varies from 
one year in some states to two years in other 
states, counting from the time the cause of ac- 
tion accrued. The question of when a cause of 
action accrues is often difficult to determine, and 
has led to innumerable interpretations by the 
courts. When a cause of action accrues, the 
statute is said to begin to run. In malpractice 
cases, as a general proposition, the action accrues 
at the time the services were rendered. 1 Ordi- 
narily the statute of limitations begins to run at 

1 15 L. R. A., 161. 

199 



200 DENTAL JURISPRUDENCE 

the time the services complained of were ren- 
dered. Where the negligence and unskillfulness 
of a surgeon in treating a fractured arm were the 
gist of the action, the statute begins to run at 
the time of the setting of the arm, where the 
facts showed that the wrongful setting was the 
real and substantial cause of complaint. 2 It is 
the breach of duty that constitutes the ground of 
complaint and causes the action to accrue, and 
not knowledge by the plaintiff of the fact of the 
wrong evidenced by the resulting injury. 3 

Malpractice Cases. — As to actions for malprac- 
tice it is generally held that the statute begins 
to run at the time the injury is inflicted, although 
the results may not be fully developed until long 
after. 4 Malpractice in the delivery of a woman, 
whereby the child is injured, dates from the time 
of the delivery, although the serious consequences 
of the negligence are not apparent for several 
years thereafter. 5 

Diligence. — It is not the policy of the law to 
refuse redress to an injured party who has a 
just cause of complaint. Diligence in enforcing 
remedies is the purpose of the statutes under 
consideration. A party must not sleep on his 
rights. Seasonable promptness in appealing for 
redress is encouraged, — demanded. However, a 



2 Coady v. Reins, 1 Mont., 424. 

3 Frounce v. Nichols, 22 Ohio C. C, 539. 

4 Fadden v. Satterlee, 43 Fed., 568. 

5 Miller v. Ryerson, 22 Ont., 369. 



STATUTES OF LIMITATIONS 201 

party cannot be said to sleep on his rights be- 
fore he knows that he has suffered injury at the 
hands of another. Generally, in matters of mal- 
practice the time when the action accrues is al- 
ways self-evident to the patient and others, as 
there can be no mistaking exactly when the wrong- 
was done and the injury inflicted. The presence 
of the injury is a continual reminder of the wrong- 
ful conduct. But cases there are which are not 
free from doubt and uncertainty. Take the case 
of a course of treatment by a physician or den- 
tist which was clearly wrong from the beginning 
and resulted in injury to the patient. Should the 
statute begin to run with the first treatment or at 
the termination of the relation ? Is not the wrong 
a continuing one? Is there not a breach of duty 
at the last as well as at the first, or at any inter- 
vening visit? So long as the improper treatment 
continues there is a continuing breach of the duty 
which the practitioner owes to his patient. 

Specified Services. — Where there is an agree- 
ment for certain specified services, covering a 
period of time, the statute should not begin to run 
until the services have been completed, or the re- 
lation terminated in some other manner. 

Latent Injuries. — Explanation. — General laws 
cannot cover every possible contingency. The 
statutes under discussion presume that the party 
wronged knows of his injury at the time of its 
infliction. In most cases of malpractice this is 



202 DENTAL JURISPRUDENCE 

not a violent presumption. The man with a de- 
formity occasioned by an improper setting of the 
parts by the surgeon, is continually reminded 
of the wrong which was done him, and of the 
breach of duty by his surgeon. Cases there are, 
however, where the injury is inflicted and the 
patient does not know, and from the very nature 
of things cannot know, he has been wronged. To 
illustrate: Take the case where a dentist care- 
lessly breaks the end of his brooch in the root of 
a tooth, makes no reasonable effort to remove it, 
and carelessly closes up the cavity without advis- 
ing the patient of the situation. How is the pa- 
tient to know the facts until after trouble arises? 
The law is not intended to protect the wrongdoer 
who successfully covers up his misdeeds, nor the 
party whose negligence of omission is concealed 
by the nature of his dereliction. The patient in 
whose abdomen an operating surgeon has left a 
sponge, absorbent cotton, a pair of scissors or 
other foreign substance, may be ignorant of the 
fact until years after when, driven by excruciating 
pain to undergo another operation, the presence 
of the intruder is disclosed. 

A Continuing "Wrong. — Such cases are in real- 
ity continuing breaches of the obligation which 
the operator owes to his patient. If the surgeon 
knew of the presence of the foreign body and 
purposely, with or without malice but without suf- 
ficient reason, permitted it to remain, his con- 



STATUTES OF LIMITATIONS 203 

duct in that respect would amount to an assault. 
If lie did it through negligence, the law would 
charge him with knowledge, for he should have 
known, and the legal consequence as to his liabil- 
ity should be the same. In either alternative the 
act amounts to a continuing assault, should be so 
regarded by the courts, and the statute should 
not begin to run until the discovery of the fact 
by the patient, or until, in the exercise of reason- 
able care and due diligence, under the circum- 
stances, the patient should have discovered his 
condition. If the object is removed by the offend- 
ing surgeon, the statute should not begin to run 
until such removal and the disclosure of such fact 
by the surgeon to the patient. 

A Continuing Obligation. — Where a physician 
operated upon a patient for what he pronounced 
to be appendicitis, and neglected to remove from 
her abdominal cavity a sponge which he had 
placed therein, in connection with the operation, 
and this condition continued during his entire pro- 
fessional relation to the case, it was held that 
the statute of limitations did not commence to 
run against the right to sue and recover on ac- 
count of want of skill, care and attention, until 
the case had been abandoned or the professional 
relation otherwise terminated. There was an 
agreed consideration in this case for the opera- 
tion itself, and also for such treatment, skill and 
care as might be necessary thereafter, and the 



204 DENTAL JURISPRUDENCE 

contract was regarded as an entirety. The obli- 
gation on the part of the physician to use due care 
and diligence, to the end that recovery might be 
had, existed, therefore, as long as the relation of 
physician and patient continued. "It was a con- 
stant and daily obligation to use ordinary skill 
and care and if, by omission or negligence he had 
left a foreign substance within the walls of the 
incision at the time of the operation, it behooved 
him to afford timely relief. Neglect of this duty, 
imposed by the continuance of obligation, was a 
continuous and daily breach of the same and, as 
the facts show, caused continuous increasing 
daily and uninterrupted injury." It will be ob- 
served that in this case there were two distinct 
grounds on which to base complaint against the 
surgeon: First, for negligently permitting the 
sponge to remain in the cavity when closing the 
incision, and, Second, negligently allowing it to 
remain there from day to day until he dismissed 
his patient from his attention. The neglect of 
the surgeon was inherent in the operation, and 
also in the subsequent treatment? 

In the case cited, the court appears to have per- 
mitted a recovery for the entire injury suffered, 
though part of the injury appears to have been 
inflicted beyond the period when the statute of 
limitations began to run. 

Minors. — The statutes usually except minors, 



6 Gillette v. Tucker, 67 Ohio St., 106. 



STATUTES OF LIMITATION'S 205 

insane persons and others under disability, and 
give such persons a certain period after the re- 
moval of the disability in which to begin suit, so, 
in case of malpractice on a minor, the possibility 
of litigation is not destroyed until a year or more 
after the patient attains his majority. 



INDEX 



INDEX 



Absorbent gauze cases, 56 
Acceptance, 137 
Accident, 37 
Act, civil rights, 41 

forbidden, 77 

independent, 47 
Action, survival of, 173 

joint, 173 
Advertisements, false, 192 
Affirmation, 155 
Age from teeth, 58 
Agreement : 

compensation, 88 to 102 

operation, 75 

not to sue, 174 

special, 96 
Analysis of subject, 1 
Anesthetic, 62 
Administer, right to, 67 

definition, 62 

effects, 64 

kinds, 62 

liabilities, 63 

rape, 65 

responsibilities, 64 

testimony, 65 
Artificial teeth, necessaries, 98 

B 

Bad character, not material to fee, 96 

Best judgment, 21 

Boards of examiners, 108 

Brooch, 55 

Burden of proof, 45 

Business relations, 129 

acceptance, 137 

delivery, 129 

payment, 135 

C 
Care, 18 

209 



210 INDEX 

Cases on fraud, 184 
Chastity in rape cases, 67 
Civil rights acts, 41 

dentists not included, 42 

social relations, 42 

professional relations, 42 
Compensation, 88 to 102 

agency of minor, 100 

agreement for, 88 

agreement not necessary, 88, 91 

benefit to patient, 89 

care of practitioner, 92 

charges by others, 95 

charge for similar case, 92 

detriment to dentist, 89 

family expense, 99 

fault to dentist, 90 

guaranty of third person, 97, 146 

history, 88 

license presumed, 97 

malpractice, 101 

minor, 101 

mother liable, 101 

necessaries, 97 

no agreement, 88 

no relief, 92 

opinions, 95 

parent and child, 100 

pecuniary circumstances, 96 

professional standing, 93 

proper treatment, 90 

remedies disclosed, 93 

special agreement, 96 

standing of dentist, 96 

success not essential, 92 

treatment, frequency, 92 

unlicensed dentist, 97 

value, a question of fact, 91 

visits, number of, 92 
Confidence, 175 
Confidential relation, 2, 176 
Consent to operation, 69 

agreed operation, 75 

authority to practitioner, 83 

contract, 83 

damages, 86 

departure from agreed operation, 75 

doctrine stated, 83 

duty of practitioner, 82 

emergency, 72 

extent of consent, 73 
implied, when, 69 



INDEX 211 

implied contract, 79 

methods, 72 

minors, 73 

motive, 69 

necessary, 72 

patient determines operation, 74 

practitioner's authority, 82 

prohibited act, 77 

provisions of contract, 83 

right of patient, 82 

rule stated, 83 

scope of consent, 70 

"welfare of patient, 75 

whose, 73 
Consideration, 125 to 127 

equivalence, 126 

benefit to promisor, 127 

detriment to promisee, 127 

promise for promise, 127 
Contract, 119 to 128 

benefit to promisor, 127 

consideration, 125 

constitutional right, 128 

delivery, 123 

detriment to promisee, 127 

equivalence, 126 

express, 120 

implied, 121 

injunction, 198 

parties, 124 

promise for promise, 127 

rescission, 140 

restraint of trade, 195 

right to contract, 128 

signing written contract, 127 

specific performance, 195 
Contract in restraint of trade, 195 
Contractual relation, 119 
Contribution, 174 
Contributory negligence, 32 

definition, 32 

illustrations of the rule, 33 j 

reason for the rule, 33 
Courts, 151 

Cross-examination, 146, 154 
Cure, failure to, 34, 92 

or no pay, 97 



death, 49 



212 INDEX 

false representations, 94 

malpractice, 45 

unauthorized operation, 86 
Death from malpractice, 48 
Default in delivery, 136 
Defects, 140 
Definitions : 

accident, 37 

care, 18 

contract, 120 

dentistry, 5 

evidence, 154 

fraud, 179, 180 

malpractice, 26 

negligence, 27 

presumption, 51 
Delivery, 129 to 135 
Dentist, a physician, 4 
Dentition, 58 to 61 

age by teeth, 58 

development, 58 

identification, 60 
Departure from agreed operation, 75 
Development of law, 1 

diagnosis, 43 



E 



Effect of signing contract, 127 
Emergency, operation, 72 
Equivalence, 126 
Examiners, boards of, 108 
Exhibiting injury to jury, 37 
Experimentation, 29 
Expert testimony: 

definition, 160 

subject matter of, 158 

subjects of inquiry, 163 
Expert witness, 160 

cross-examination, 164 

definition, 160 

qualifications, 161 
Evidence, 154 to 165 

definition, 154 

opinion, 154 

testimony, 155 



Failure to relieve, 34 

Family expense, 99 

False representations, 175 to 194 



INDEX 213 



advertisements, 192 

cases in, 184 

caveat emptor, 177 

confidential relations, 176 

damages, 194 

elements of the tort, 183 

fee, 88 to 102 

fee, services, liability, 39 

fraud, 179 

frauds, statute of, 143 

intent, 182 

knowledge, 178, 188 

materiality, 181 

motive, 180 

opinions 177, 178 

past fact, 177 

reason for the rule, 190 

remedies, 193 

skill, 192 

third party, by, 192 

trust, 175 



G 



Gauze, surgical operation, 56 
Goods, wares, etc., 143 
Gratuitous services, liability, 39 
Guaranty, 97, 146 
Guarantor, 35 



Hearing to revoke license, 111 
Hearsay evidence, 153 



Ignorance, 26 

Immoral conduct, license, 114 1 

Improper treatment, 26 

Infection, 56 

Injunction, 198 

Injury, 26, 37 



Intoxication, 17 



Jaw, broken, 56 
Joint tort feasor, 173 

contribution, 174 

purchase of peace, 174 

satisfaction, 174 

survival of action, 173 
Judgment, 20 

application, 20 



214 INDEX 

best, 21 

correct, 21 

different courses, 22 

latitude of discretion, 21 

no guaranty of correctness, 21 

rule, 21 
Jurisdiction, 151 
Jurisprudence, 5 
Jury trial in revocation of license, 118 



Knowledge, see skill. 



Latent, injury, statute of limitations, 201 
Law, development of, 1 
Liability for independent act, 47 
License, 103 to 118 

boards, 108 

common law rights, 103 

fraud, 117 

immoral conduct, 114 

jury trial, 118 

power of state, 104, 107 

public welfare, 103 

requirements for, 105 

restrictions, 106 

revocation, 110 

statutes construed liberally, 109 

unreasonable requirements, 105 

vested rights, 110 



M 



Malpractice, 26 

accident and negligence, 37 

agreement excusing, 36 

anesthetic, 47 

assistance, 33 

assistants, 48 

burden of proof, 45 

carelessness, 28 

causes, more than one, 56, 57 

civil rights acts, 41 

contribution, 174 

contributory negligence, 32 

criminal liability, 49 

damages, 45 

death from, 48 

definition, 26 



INDEX 215 



diagnosis, 43 

established mode of treatment, 29 

excused, 28 

exhibiting injury, 37 

experimentation, 29 

failure to cure, 34 

good faith, 27 

gratuitous services, 39 

illustrations of rule, 33 

improper treatment and injury, 26 

independent treatment, 34 

independent acts, 47 

infection, 46 

intoxication, 17 

law, a question of, 30 

matron, 48 

mistake in diagnosis, 47 

negligence, 27 

nurses, 28 

partners, 47 

patient, negligence of, 31 

preponderance of evidence, 45 

presumptions from injury, 11 

refusal to treat, 39 

relation to injury, 26 

rule, reason for contributory negligence, 33 

satisfaction of claim, 174 

services free, 39 

suit in tort, 35 

tort, 35 

usual treatment, 28 

wrong diagnosis, 43 
Material, specified, 138 
Materiality of false representation, 181 
Matron, liability for act of, 48 
Merchandise, 143 
Minors : 

consent to operation, 73 

necessaries furnished, 99, 101 

statutes of limitations, 204 

N 

Nature of subject, dental jurisprudence, 1 
Necessaries, 97 to 99 

artificial teeth, 98 

definition, 98 

dental services, 98 

filling teeth, 99 

husband and wife, 97 

insane persons, 98, 99 

minors, 99, 101 

selection of dentist, 99 



216 INDEX 

special contract, 97 

teeth, 98 

value, 97 

wife, 98 
Negligence, 27 

accident, 37 

agreement excusing, 36 

anesthetic, 47 

contributory, 32 

criminal liability, 49 

damages, 45, 49 

death from, 48 

definition, 27 

established mode, 29 

excused, never, 28 

experimentation, 29 

good faith, 27 

gratuitous services, 39 

infection. 46 

malpractice, 26 

matron, 48 

never excused, 28 

nurses, 28 

partners, 47 

patient, 28, 31 

presumption from injury, 34 

professional assistance, 33 

question of law, 30 

refusal to treat, 39 

relation to injury, 29 

suit in tort, 35 

usual treatment, 28 

wrong diagnosis, 43, 47 
Notice to revoke license, 111 

O 

Oath, 155 
Operation, 69 

consent to, 69 

implied contract, 69 

unauthorized, 75 
Operator's duty — patient's right, 82 
Opinion evidence, 154 

definition, 154 

value of services, 95 

P 

Parent and child, 100 
Partners, liability of, 47 
Patient, negligence of, 31 
Patient's right — operator's duty, 82 
Pecuniary circumstances, as affecting fee, 



INDEX 217 



Preponderance of evidence, 45 
Presumption from infection, 56 
Presumptions, 51 to 57 

brooch in tooth, 55 

care, 19 

definition, 51 

failure to cure, 34 

gauze, surgical operation, 56 

infection, 56 

license, 97 

negligence, 34 

skill, 11 
Privileged communications, 165 

at common law, 166 

code, Napoleon, 169 

criminal purpose, 169 

definition, 165, 166 

dentists not included, 168 

incidental information, 167 

interpretation, 166 

provisions, 166 

purposes, 166 

statutes, 166 

waiver of privilege, 168 
Procedure, 152 
Progress, 24 
Profession, nature of, 3 



Qualification, of expert, 161 
Quality, 139 



Rape, 65 

anesthetic, 66 

definition, 65 

effect of unchastity, 67 
Reasonable opportunity, 111, 138 
Reasonable time, 138 
Receipt, 147 

Refusal to take case, 39 
Relief, patient and dentist, 34 
Release, 149 
Representations, false, 175 

advertisement of, 192 

cases in, 184 

caveat emptor, 177 

confidential relation, 176 

damages, 194 

elements of tort, 183 



218 INDEX 

intent, 192 

knowledge, 178, 188 

materiality, 181 

motive, 180 

opinions, 177, 178 

past fact, 177 

remedies, 193 

skill, 192 

third party, by, 192 

trust, 175 
Requirements for license, 105 
Rescission, 140 
Res ipsa loquitur, 51 to 57 

applied, 53 

brooch, 55 

definition, 51 

fact, 51 

fracture of jaw, 56 

gauze, 54 

infection, 56 

jaw, fracture of, 56 

law, 51 

maxim, 52 

operations, 54 

other causes, 56 

presumptions, 51 

sponge cases, 54 

surgical operations, 54 
Restraint of trade, contracts, 195 

injunction, 198 

restrictions, 196 

specific performance, 195 

when valid, 195 
Results, not guaranteed, 35 
Revocation of license, 110 to 118 

adjudicated cases, 116 

charges, 111 to 114 

criminal prosecution, 118 

grounds, 114 

immorality, 114 

jury trial, 118 

limitations, statutes of, 118 

manner of revoking, 111 

power of state, 110 

right to revoke, 110 

statutes of limitations, 118 
Right to contract, 119, 128 



S 



Satisfaction of claim, 174 
Satisfaction of patient, 96, 141 



INDEX 219 



Sensitiveness of patient, 141 

fee for, 88 to 102 
Services, free, liability, 39 
Skill, 7, 10, 12 

agreement excusing, want of, 36 

applied, 15 

average, 11 

best, not required, 13 

bill not presented, 17 

confused with care, 7 

definition, 16 

disease treated, 12 

failure to relieve, 11, 17 

generality of requirement, 10 

highest, not required, 14 

illustration, 13 

intoxication, 17 

license, 12 

legal responsibility, 9 

locality, 14 

other vocations, 17 

ordinarily skillful, 14 

ordinary, 14 

presumption, 11, 17 

relative term, 12 

result, 11 

special claims, 23, 96 

test, 12 

time, 16 
Special agreement, 96 
Specialist, 23 
Specific performance, 195 
Specified material, 138 
Sponges, 56 
Statutes of limitations, 199 to 205 

accrual of ca*use, 199 

continuing wrong, 202 

diligence, 199, 200 

latent injury, 201 

malpractice cases, 200 

minors, 204 

policy of law, 199 

revocation of license, 118 

specified services, 201 
Subject, nature of, 1 
Sunday, 170 

charity, 171 

contracts on, 170 

necessity, 171 

statutes prohibiting work, 171 
Surgeon and dentist, 3 
Survival of action, 173 



220 INDEX 



Teeth, 58 

age from, 58 

identification by, 6 
Terminology, 5 
Testimony, 155 

definition, 155 

opinions, 155 

under anesthetic, 65 
Tort, false statement, 175 to 194 
Treatment, one mode, 29 
Trial bv jury, in revocation of license, 118 
Trust, 175 

U 

Unauthorized operation, 77 

Unchastity in rape cases, 67 

Unlicensed dentist, fee, 97 

Unreasonable requirements, for license, 105 



Vested rights, 110 

W 

Wares, 143 
Witnesses, 155 

affirmation or oath, 155 

definition, 155 

expert, 160 

oath or affirmation, 155 

ordinary, 155 
Workmanship, 139 
Wrong diagnosis, liability, 43 



